UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


2490.74 


.101 IX     MARSHALL    LLD. 


SKETCHES 


LIYES  AND  JUDICIAL  SERVICES 


CHIEF-JUSTICES 


SUPREME   COURT  OF  THE  UNITED  STATES. 


BY 

GEORGE  VAN  SANTVOORD. 


NEW  YORK: 

CHARLES    SCRIBNER,    145   NASSAU    STREET. 
1856. 


Entered  according  to  Act  of  Congress,  in  the  year  1854,  by 

CHARLES    SCRIBNER, 

la  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 


STEREOTYPED  BY 

CHAKLES  W.  BENEDICT, 
10  Spruce  Street. 


TO    THE 

HON.  SAMUEL  NELSON, 

ONE  OF  THE  ASSOCIATE-JUSTICES  OF  THE  SUPREME  COURT 
OF  THE  UNITED  STATES. 

SIB, — I  do  not  know  to  whom  I  can  more  appropriately  dedicate  this  work 
than  to  yourself.  For  more  than  twenty  years,  as  Circuit-Judge,  as  Asso- 
ciate-Justice, and  as  Chief-Justice  of  the  New  York  Supreme  Court,  your 
learning  illustrated,  and  your  virtues  adorned,  the  judicial  records  of  our 
State.  Appointed  to  the  elevated  position  you  now  occupy,  as  the  successor 
of  a  THOMPSON,  and  a  LIVINGSTON,  you  carried  with  you  the  unanimous  ver- 
dict of  the  profession  that  the  ermine  of  those  illustrious  judges  could  not 
have  fallen  on  one  more  worthy  to  receive  it ;  and  a  service  there  of  nearly 
ten  years  has  rendered  it  abundantly  evident  that  posterity  will  not  seek  to 
set  that  verdict  aside. 

As  the  only  present  member  of  the  Court  from  our  own  State,  whose  bench 
and  bar  you  may,  therefore,  be  said  to  represent  in  the  Federal  Judiciary,  there 
seems  to  be  such  a  peculiar  fitness  in  inscribing  your  name  on  these  pages, 
that  I  esteem  it  not  only  an  honor,  but  a  privilege,  in  being  allowed  to  make 
this  dedication.  Permit  me  then  to  express  the  lively  gratification  I  feel  in 
having  your  permission  to  inscribe  this  work  to  you. 

With  sincere  respect,  I  have  the  honor  to  be  your  obliged  and  humble 
servant, 

G.  VAX  SANTVOORD. 

TROT,  N.  Y.,  August  1st,  1854. 


CONTENTS. 


JOHN  JAY,  ......................  /  ....................         3 

• 
JOHN  RUTLEDGE,  ........................................     91 

OLIVER  ELLSWORTH,  ................  „  ....................   193 

JOHN  MARSHALL,  ...................  '.  ...................   293 

ROGER  B.  TANEY,  ......................................   459 


1647G7 


PREFACE 


OF  the  five  eminent  Jurists  who  have  successively  filled  the  elevated  station 
of  Chief-Justice  of  the  United  States,  only  one — the  first  Chief-Justice,  Jay 
— has  hitherto  been  the  subject  of  anything  like  a  complete  biography.  So 
far  as  I  know,  with  this  exception,  and  except  also  an  occasional  sketch,  or 
an  obituary  notice — such  as  that  pronounced  on  Marshall,  by  his  brother 
Judge  Story,  before  the  Suffolk  bar — no  attempt  has  been  made  to  preserve 
in  a  connected  narrative,  even  the  public  history  and  career,  to  say  nothing  of 
the  professional  life  and  judicial  services,  of  these  distinguished  men,  three  of 
whom  were  prominent  and  active  leaders  among  the  statesmen  of  the  Revo- 
lution. I  have  seen  it  stated  some  years  since,  that  a  son-in-law  of  Judge 
Ellsworth  was  preparing  an  extensive  and  complete  biography  of  that  gentle- 
man, containing  his  speeches,  extracts  from  his  writings,  and  many  interesting 
facts  in  regard  to  him,  but,  for  some  cause  which  I  have  not  seen  explained, 
the  promised  memoir  has  not  made  its  appearance.  It  might  indeed  seem  a 
singular,  and  unaccountable  neglect,  that  one  so  eminent  and  distiriguished  in 
our  civil  and  diplomatic,  as  well  as  our  judicial  annals,  should  not  hitherto 
have  had  a  place  assigned  him  in  our  biographical  literature,  were  not  the 
same  unaccountable  neglect  manifest  in  the  case  of  his  immediate  predecessor, 
as  well  as  in  that  of  his  illustrious  successor,  on  the  bench  of  the  Supreme 
Court.  Surely  the  rich  mine  of  American  biography  cannot  be  nearly  ex- 
hausted when  such  treasures  as  the  lives  of  RUTLEDGE,  ELLSWORTH,  and  MABT 
SHALL  lie  still  undeveloped  and  comparatively  neglected. 

The  plan  of  these  memoirs,  which  are  now  submitted  with  unaffected  diffi- 
dence to  the  public,  is  such,  as  necessarily  to  restrict  that  part  of  them  which 
may  properly  be  called  biographical,  within  very  narrow  limits.  They  do 
not  pretend  to  the  minuteness  of  the  full  and  complete  biography,  and  I  have 
not,  therefore,  assumed  to  dignify  them  with  a  higher  title  than  simply  that  of 
"  sketches."  My  object  has  been  rather  to  trace  the  judicial  history  and  follow 


yiii  PREFACE. 

the  professional  career  of  these  illustrious  jurists,  than  to  write  what  may 
properly  be  called  their  biographies.  Still,  I  have  endeavored  not  to  neglect 
entirely  the  essential  requisites  of  biography,  but  have  attempted,  so  far  as 
the  limits  prescribed  will  permit,  to  present  an  accurate  and  connected  view 
of  the  public  and  official  life  of  each  of  ^them  before  coming  to  the  bench. 

"Without  further  remark  I  might  here  submit  this  volume  to  the  judgment 
of  the  reader,  and  leave  it  to  speak  for  itself.  But  a  single  additional  obser- 
vation seems  proper  and  necessary.  I  am  aware  that  the  review  of  judicial 
decisions,  which  I  have  given  somewhat  at  length,  is  a  wide  departure  from 
the  ordinary  course  of  biographical  writing.  1  have  not  entered  upon  it, 
however,  without  due  reflection  and  design.  A  main  object  in  undertaking  this 
work  has  been  to  trace  something  like  a  history  of  the  United  States  Supreme 
Court,  and  to  present  a  brief  and  succinct,  but  connected,  view  of  the  Con- 
stitutional jurisprudence  of  the  United  States;  and  I  knew  of  no  more 
agreeable  and  interesting  mode  of  doing  this  than  by  combining  it  with 
sketches  of  the  public  and  professional  lives  of  those  eminent  men  who  have 
from  time  to  time  presided  in  the  Supreme  Federal  tribunal.  I  have  attempted 
thus  to  unite  judicial  and  constitutional  history  with  biography.  This  has 
enabled  me  to  take  a  wider  and  more  general  view  of  the  entire  subject ;  to 
embrace  within  these  sketches  not  only  those  matters  which  are  properly  the 
subject  of  the  memoirs  of  a  life,  but  also  to  trace  the  history  of  the  Federal 
judiciary  from  its  earliest  beginnings ;  to  consider  the  facts  and  results  con- 
nected with  the  adoption  of  the  Federal  Constitution,  and  to  review,  or  notice, 
more  or  less  fully,  most  of  the  important  Constitutional  questions  which  have 
been  discussed  in  the  Supreme  Court  from  the  foundation  of  the  government 
to  the  present  time. 

There  are  those,  perhaps,  who  may  consider  such  a  work  as  too  professional, 
to  claim  a  place  within  the  sphere  of  general  literature,  and  to  regard  such 
an  analysis  of  legal  cases  as  has  been  incorporated  into  it,  as  incompatible 
with  the  legitimate  objects  of  popular  biography.  Perhaps  such  a  criticism 
may  be  just.  It  is  not,  however,  for  the  author  to  anticipate  it.  If  he  has 
misjudged  in  this  respect',  he  has  at  least,  the  satisfaction  of  knowing  that 
the  general  plan  of  his  work  has  been  considered  with  favor  by  friends  in 
whose  judgment  he  has  confidence ;  and  should  its  success  not  meet  their  ex- 
pectations he  can  but  attribute  it  to  its  imperfect  manner  of  execution,  and 
not  to  any  want  of  public  interest  in  that  branch  of  the  subject  alluded  to  ; 
— a  subject  which  can  never  be  indifferent  to  the  American  citizen — the  con- 
stitutional history  and  jurisprudence  of  his  country. 


JOHN    JAY. 


JOHN  JAY. 


HISTORY  is  not  always  just  in  its  discriminations,  or  correct  in  its 
estimate  of  individual  character  and  of  the  true  worth  and  merit  of 
public  services.  There  is  something  so  attractive  to  the  historian  in 
tracing  successful  results  in  administration,  and  brilliant  achieve- 
ments on  the  field  of  battle,  that  he  is  apt  to  lose  sight  of  the  less 
striking  but  no  less  valuable  labors  of  the  discreet  statesman  in  the 
legislature,  the  jurist  on  the  bench,  and  the  ambassador  in  the  field 
of  foreign  diplomacy.  Thus  it  happens  in  regard  to  our  revolution- 
ary struggle,  that  while  the  popular  admiration  centres  round  the 
more  prominent  actors  on  the  scene,  there  is  a  class  of  men,  stand- 
ing comparatively  in  the  background,  whose  characters  have  never 
been  fully  appreciated,  and  to  whose  memories  history  has  not  yet 
done  entire  justice.  These  are  the  men  of  the  Continental  Congress 
and  of  the  Federal  and  State  Conventions — the  Livingstons,  the 
Rutledges,  the  Morrises,  the  Ellsworths — the  men  who  aided,  not 
only  in  achieving  the  American  Revolution,  but  in  laying  broad  and 
deep  the  foundations  of  liberty,  and  in  reconstructing  our  political 
institutions.  Without  their  aid,  however  successful  the  contest,  it 
must  have  ended  in  ultimate  defeat.  The  battle  might  have  been 
won,  but  the  fruits  of  victory  never  obtained.  The  arm  of  the  con- 
queror would  have  fallen,  paralyzed,  in  the  moment  of  his  triumph  ; 
for  the  experience  of  history  shows  that  the  civilian  and  the  states- 
man are  as  necessary  as  the  soldier  to  the  successful  issue  of  a  revolu- 
tion. 


4:  LIVES  OF  THE  CHIEF-JUSTICES. 

One  of  these  men  was  JOHN  JAY — a  man  of  modest  virtue  and 
unpretending  merit,  who  quietly,  faithfully,  and  ably  discharged  the 
most  important  duties  in  the  sphere  he  was  called  upon  to  fill. 
There  are  those  who  played  a  more  imposing  and  brilliant  part  than 
he  in  the  revolutionary  drama,  and  whose  names  posterity  has  been 
inclined  to  inscribe  higher  on  the  scroll  of  fame  ;  but  there  are  few 
who  are  more  deserving  the  respect  and  veneration  of  their  country- 
men. His  signature,  it  is  true,  is  not  found  with  those  of  Jefferson 
and  Adams,  affixed  to  the  Declaration  of  Independence  ;  nor  with 
Hamilton  and  Madison  did  he  assist  in  raising  the  fabric  of  the 
Federal  Constitution.  But  no  man  rendered  a  more  zealous  and 
energetic  support  to  the  one,  and  none  contributed  more  efficiently 
to  sustain  and  carry  out  the  other.  And  whatever  in  our  day  may 
be  thought  of  the  correctness  of  some  of  his  political  views,  no 
American  will  fail  to  render  a  ready  homage  to  that  active  zeal, 
courage,  and  devotion  to  the  common  cause,  as  well  as  to  that  honesty 
of  purpose  and  moral  rectitude  which  characterized  the  public,  as  it 
did  the  private  life  of  one  of  the  purest  men  of  the  Revolution. 

The  name  of  John  Jay  should  be  especially  venerated  by  the 
American  lawyer  ; — indeed  it  is  a  name  that  cannot  soon  be  forgot- 
ten. The  first  Chief-Justice  of  the  Supreme  Court  of  the  State  of 
New  York — the  first  Chief-Justice  of  the  Supreme  Court  of  the 
United  States  under  the  Federal  Constitution,  he  occupied  a  posi- 
tion which  of  itself,  and  without  the  aid  of  that  learning,  and  those 
varied  accomplishments  which  adorned  his  mind,  would  have  left  a 
memory  that  could  not  soon  have  faded  from  the  records  of  American 
jurisprudence. 

I  shall  have  occasion  in  attempting  a  sketch  of  the  life  and  services 
of  the  first  Chief-Justice  of  the  United  States,  to  consider  him 
in  the  character  of  a  lawyer  and  a  judge,  as  well  as  in  those  more 
public  capacities,  legislative,  diplomatic  and  executive,  which  he 
filled  during  the  greater  portion  of  his  active  life.  It  is  not  only  as 
a  statesman,  but  as  a  jurist,  that  John  Jay  ought  to  be  known  to  his 
countrymen.  For  it  is  from  the  record  of  his  judicial  labors,  as  well 
as  from  the  history  of  his  political  career,  that  we  are  to  draw  a  true 
estimate  of  his  character,  and  of  the  extent  and  value  of  the  services 
he  rendered  his  country. 


JOHN  JAY.  5 

JOHN  JAY  was  born  in  the  city  of  New  York,  on  the  12th  day  of 
December,  1745.  He  was  descended  on  the  father's  side  from 
French  ancestry.  His  mother's  ancestors  were  from  Holland.  His 
paternal  grandfather,  Pierre  Jay,  was  an  opulent  merchant  at  Ro- 
chelle.  A  Protestant,  he  was  obliged  to  leave  France  on  the  revo- 
cation of  the  edict  of  Nantz,  and  take  refuge  in  England.  One  of 
his  three  sons,  Augustus,  emigrated  to  New  York,  and  married  a 
daughter  of  Balthazar  Bayard,  whose  ancestors,  like  those  of  Mr.  Jay, 
had  been  Protestants,  and  had  been  obliged  to  emigrate  from  France 
to  Holland.  Three  daughters  and  one  son  were  the  fruits  of  this  union. 
The  son,  in  honor  of  the  Rochelle  merchant,  was  named  Peter.  In 
1728  Mr.  Peter  Jay  married  Mary  Yan  Cortlandt,  the  daughter  of 
Jacobus  Yan  Cortlandt,  a  gentleman  belonging  to  one  of  the  oldest 
families  of  the  Dutch  colonists  who  settled  Manhattan  Island.  Peter 
Jay  had  ten  children,  of  whom  the  subject  of  this  sketch,  JOHN,  was 
the  eighth.  The  family,  we  are  told,  removed  to  the  town  of  Rye, 
on  Long  Island  Sound,  about  twenty-five  miles  distant  from  New 
York,  and  John  was  carried  there  in  his  nurse's  arms. 

At  the  age  of  six  or  seven  years,  his  father  remarks  of  him,  that 
he  is  "  of  a  very  grave  disposition,  and  takes  to  learning  exceedingly 
well ;"  and  again,  "  My  Johnny  gives  me  a  very  pleasing  prospect. 
He  seems  to  be  endowed  with  a  very  good  capacity,  is  very  reserved, 
and  quite  of  his  brother  James'  disposition  for  books."  At  the  age 
of  eight  John  was  sent  to  a  grammar-school  at  New  Rochelle,  kept 
by  the  Rev.  Mr.  Strope,  pastor  of  the  French  church  at  that  place. 
At  fourteen  he  entered  King's  College,  in  the  city  of  New  York, 
over  which  Dr.  Samuel  Johnson  then  presided.  Egbert  Benson, 
Peter  Yan  Schaack,  Richard  Harrison,  Gouverneur  Morris  and 
Robert  R.  Livingston,  all  of  whom,  like  Mr.  Jay,  subsequently  pur- 
sued with  distinction  the  legal  profession,  were  among  his  college 
acquaintances.  He  graduated  on  the  15th  May,  1764,  with  the 
highest  collegiate  honors,  having  been  selected  to  speak  the  Latin 
salutatory. 

The  father  and  grandfather  of  Mr.  Jay  had  been  merchants. 
That  honorable  pursuit,  however,  did  not  agree  with  the  tastes  and 
inclinations  of  the  young  graduate.  The  choice  of  a  profession  being 
left  to  him,  he  selected  that  of  the  law,  and  entered  the  office  of 


6  LIVES  OF   THE  CHIEF-JUSTICES. 

Mr.  Benjamin  Kissam,  an  eminent  practitioner  in  the  city  of  New 
York. 

We  have  no  very  accurate  account  of  the  incidents  attending  the 
clerkship  and  preparatory  studies  of  the  future  Chief- Justice — they 
were  probably  much  the  same  as  those  which  are  familiar  to  the  ex- 
perience of  every  student.  It  must  be  recollected,  that  in  those 
days,  a  preparation  for  the  legal  profession  was  not,  as  it  often  is  at 
present,  an  agreeable  recreation.  It  was  a  real  labor,  and  often  a 
drudgery.  Printed  blank  forms  were  unknown,  and  every  thing  was 
written,  even  the  argument  of  questions  of  law.  The  labors  of  a 
clerkship  were  consequently  very  arduous,  and  a  large  portion  of  the 
time  of  the  student  was  occupied  in  attention  to  office  duties.  Nor 
were  elementary  treatises — those  ready  and  convenient  aids  in  acquir- 
ing the  elements  of  the  profession — so  plenty  then  as  now.  Finch's 
Law,  Wood's  Institutes,  or  Coke  upon  Littleton  were  the  books 
usually  placed  in  the  hands  of  the  student  at  the  commencement  of 
his  clerkship,  each  of  which,  to  use  the  words  of  Lord  Mansfield, 
applied  to  Coke,  may  be  called  "  an  uncouth,  crabbed  author,  who 
has  disappointed  and  disheartened  many  a  tyro."  The  first  volume 
of  Blackstone's  Commentaries  was  published  in  England  in  1765, 
the  second  part  some  three  years  later.  Up  to  this  time  the  difficulty 
of  selecting  the  book  which  should  initiate  the  student  in  the 
elementary  principles  of  law,  is  admitted  by  Lord  Mansfield.  "  Till 
of  late,"  he  says,  "  I  could  never  with  any  satisfaction  to  myself  an- 
swer that  question,  but  since  the  publication  of  Mr.  Blackstone's 
Commentaries,  I  can  never  be  at  a  loss."  In  entering  upon  his 
clerkship,  however,  Jay  had  not  the  advantage  of  this  admirable 
treatise,  and,  therefore,  unlike  those  students  who  have  succeeded 
him,  could  not,  ab  initio,  "  imbibe  imperceptibly  (quoting  again  the 
words  of  Lord  Mansfield,)  the  first  principles  upon  which  our  excel- 
lent laws  are  founded."  To  him,  as  to  others  in  those  times,  the  labor 
was  tedious  and  toilsome  ;  but  at  the  same  time  it  was  a  healthy  in- 
tellectual exercise,  and  a  vigorous  mental  discipline.* 

*  The  reader  may  be  curious  to  learu  the  course  of  legal  study  which  in  Jay's 
time  was  recommended  to  the  student.  The  following  extracts  are  made  from 
an  old  manuscript  manual  in  my  possession,  bearing  date  1768.  It  is  in  the  hand- 


JOHN  JAY.  7 

Between  Mr.  Jay  and  the  estimable  gentleman  in  whose  office  he 
read  law,  the  most  entire  confidence  existed,  which  gradually  ripened 
into  familiarity  and  friendship.  This  is  attested  by  several  letters 
written  by  Mr.  Kissam  to  Mr.  Jay.  In  one  of  these,  dated  soon 
after  Jay  was  admitted  to  the  bar,  Mr.  Kissam,  in  a  tone  of  playful 
and  friendly  familiarity,  compliments  his  pupil  upon  having  success- 
fully tried  several  causes  for  him,  which,  he  says,  was  done  "  by  a 
kind  of  inspiration."  Alluding  to  one  cause  in  which  Jay  was 
opposed  to  him,  Mr.  Kissam  remarks,  "As  to  the  cause  about  Cap- 
tain's Island,  this,  tell  Mr.  Morris,  must  go  off ;  because  as  you  are 
concerned  against  me,  I  can't  tell  where  to  find  another  into  whose 
head  the  cause  can  be  infused  in  the  miraculous  way  of  inspiration, 
and  without  this  it  would  be  rather  too  intricate  for  any  one  to  manage 
from  my  short  hints." 

writing  and  was  the  property  of  a  cotemporary  of  Mr.  Jay,  then  a  student-at-law 
in  the  office  of  William  Smith,  the  historian  of  New  York. 

"  But  now  I  bring  our  student  home  to  the  studies  of  his  profession  of  the  law, 
and  I  would  advise  him  to  read  these  books,  in  the  following  order : 

"  First,  for  the  knowledge  of  the  law  in  general : 

"  1.  The  treatise  of  laws  in  Wood's  Institutes  of  the  Civil  Law,  or  in  Domat, 
which  are  both  the  same. 

"  2.  Puffendorf  de  Officio  Hominis  et  Civis,  or  an  English  translation  of  it 
called  "  The  Whole  Duty  of  Man  according  to  the  Law  of  Nature,"  or  the  abridg- 
ment of  Puffendorf,  in  two  volumes,  by  Spavin." 

And  before  entering  further  into  the  law  of  Nature  and  Nations  and  the  Civil 
Law,  the  writer  advises  a  general  study  of  the  elements  of  the  Common  Law,  in 
the  following  order : 

"  Hall's  History  of  the  Common  Law. 

"  Fortescue's  Practice  of  the  Laws  of  England. 

"  Sir  Thomas  Smith's  De  Republica  Anglorum. 

"  The  first  book  of  Doctor  and  Student,  De  Fundamentum  Legum  JLnglice. 

"  The  second  part  of  Bacon's  Elements. 

"  Wood's  Institutes  of  the  Common  Law." 

After  recommending  a  farther  and  more  extensive  reading  of  the  Law  of  Nature 
and  Nations  and  the  Civil  Law,  he  remarks  : 

"  Then  to  fill  up  and  enlarge  yonr  ideas  you  may  read  Bacon's  Abridgment  of 
the  law,  which  it  is  presumed  will  all  be  soon  published.  In  reading  this  Abridg- 
ment, which  is  contrived  so  as  to  be  read  pleasantly,  I  would  advise  that  you  con- 
stantly refer  from  the  Abridgment  to  Wood,  and  from  Wood  to  the  Abridgment, 
because  I  would  have  these  books  the  basis  or  foundation  of  all  your  studies." 


8  LIVES  OF    THE  CHIEF-JUSTICES. 

Mr.  Kissam  and  Mr.  Jay  were  frequently  opposed  to  each  other  in 
the  trial  or  on  the  argument  of  a  cause.  On  one  of  these  occasions, 
being  hard  pressed  in  the  argument,  the  former  remarked,  "  I  have 
brought  up  a  bird  to  pick  out  my  own  eyes."  "  Not  so,"  retorted  Jay, 
"  not  to  pick  out,  but  to  open  your  eyes."* 

On  entering  upon  the  practice  of  the  law,  Mr.  Jay  associated 
himself  with  his  relative,  Robert  R.  Livingston,  the  future  chancel- 
lor, but  the  connection  was  soon  dissolved.  From  his  debut  as  an 
advocate  in  the  colonial  courts,  it  is  said  he  entered  upon  a  lucrative 
practice,  and  continued  it  down  to  the  period  of  the  revolutionary 
war.  I  have  not  been  able,  however,  to  draw  from  the  imperfect 
record  of  colonial  jurisprudence  any  very  satisfactory  information 
respecting  his  forensic  career,  f  or  even  of  the  more  important  causes 
in  which  he  was  engaged.  The  race  of  reporters  did  not  exist  in 
those  days,  and  the  colonial  decisions  and  adjudged  cases  with  which 
the  names  of  Jay,  Livingston,  Benson,  Morris,  Duane  and  their 
cotemporaries  were  identified  must  remain  for  us  a  lost  and  com- 
paratively forgotten  record. J  Suffice  it  then  to*  say  that  the  practice 
of  Mr.  Jay  during  these  six  or  eight  years  was  extensive  and  lucrative, 
that  he  exhibited  professional  ability  of  the  highest  order,  and  that  he 
acquired  an  eminent  and  proud  position  as  an  advocate  at  the  New 
York  bar. 

*  Life  of  John  Jay,  by  his  son,  William  Jay. 

t  It  may  be  mentioned  as  a  fact  interesting  to  the  legal  profession,  that  in  1770 
the  young  lawyers  of  New  York  formed  a  club  called  "  The  Moot,"  at  which  legal 
questions  were  discussed  and  argued  in  form.  Some  of  the  records  of  this  club 
are  still  preserved.  Its  decisions  acquired  great  authority,  and  the  questions  dis- 
cussed and  decided  were  considered  as  professionally  settled.  Among  the  junior 
members  of  the  club  were  Jay,  K.  R.  Livingston,  James  Duane,  Egbert  Benson, 
Gouverneur  Morris,  and  Peter  Van  Schaack.  The  older  members  of  the  bar  also 
regularly  attended  and  participated  in  these  discussions  and  arguments,  and  among 
them  are  found  the  names  of  those  veteran  lawyers,  "William  Smith,  Samuel  Jones, 
William  Livingston,  Benjamin  Kissam,  John  M.  Scott,  and  Richard  Morris. 

t  The  author  of  the  Life  of  William  Livingston  thinks  we  have  lost  very  little 
in  this  respect.  "  An  examination  of  Mr.  Livingston's  registers  and  business  letr 
ters,"  he  says,  "  would  much  tend  to  diminish  any  regret  which  may  be  felt  for 
the  want  of  colonial  reports.  A  great  number  of  the  cases  are  suits  for  the  col- 
lection of  debts  owned  by  English  merchants ;  and  causes  under  the  complex  law 
of  ejectment,  now  BO  happily  exploded,  form  another  large  class," — Sedgivick's 
Life  of  Livingston,  p.  71. 


JOHN  JAY.  9 

But  the  quiet  and  peaceful  course  of  professional  life  was  about 
to  be  broken.  The  contest  between  the  colonies  and  the  mother 
country  commenced.  The  young  lawyer  was  summoned  from  his 
briefs  and  his  cases,  from  his  books  and  his  precedents,  to  a  nobler 
and  more  enlarged  field  of  action.  Nor  did  John  Jay  turn  an  un- 
willing ear  to  the  summons.  While  others  hesitated  and  wavered, 
while  some  of  his  own  friends  and  intimate  associates  counselled  sub- 
mission or  passive  non-resistance,  his  voice  was  raised  among  the 
first  in  opposition  to  the  arbitrary  measures  of  Great  Britain.  On 
the  16th  of  May,  1714,  Mr.  Jay  attended  the  first  meeting  of  the 
citizens  of  New  York  called  to  "  consult  on  measures  proper  to  be 
pursued  in  consequence  of  the  late  extraordinary  advices  received 
from  England."  The  result  of  that  meeting  was  the  appointment  of  a 
committee  of  fifty,  of  which  Jay  was  one,  and  a  subsequent  report, 
said  to  be  from  his  pen,  which  recommended  the  convocation  of  a 
Congress  of  deputies  from  the  thirteen  colonies. 

The  recommendation  was  adopted.  A  Congress  was  called  and 
convened  at  Philadelphia,  on  the  5th  of  September,  1174.  Jay  was 
elected  a  member  from  New  York,  and  took  his  seat  on  the  first  day 
of  the  session.  Though  one  of  the  youngest  members  of  the  Congress, 
being  then  only  in  his  twenty-ninth  year,  he  was  placed  upon  the  com- 
mittee to  draft  an  address  to  the  people  of  Great  Britain.  That  cele- 
brated address  is  from  his  pen.  It  had  been  composed  and  written  by 
Jay  in  the  room  of  an  obscure  tavern.  It  was  reported  to  Congress  by 
Mr.  Livingston,  and  adopted  as  the  work  of  the  entire  committee,  and 
its  paternity  was  not  immediately  known. 

Jefferson  attributed  it  to  Gov.  Livingston,  by  whom  it  had  been  re- 
ported, as  chairman  of  the  committee,  and  told  that  gentleman  that  he 
regarded  it  as  "  the  production  of  the  finest  pen  in  America."  The 
author  of  the  life  of  Jefferson  states,  that  this  coming  to  the  ears  of 
Mr.  Jay,  he  was  at  some  pains  to  set  Jefferson  right  in  the  matter  and 
assert  his  own  claims  to  its  authorship. 

Of  the  proceedings  of  this  Congress  it  is  not  necessary  now  to 
speak.  It  was  composed  of  fifty-five  members.  Among  them  were 
the  distinguished  orators  from  Virginia,  Patrick  Henry  and  Richard 
Henry  Lee.*  The  debate  was  opened  by  Mr.  Henry  in  a  speech  of 

*  Prof.  Tucker  remarks  in  his  Life  of  Jeflerson,  that  though  Henry  and  Lee 


10  LIVES  OF    THE  CHIEF-JUSTICES. 

matchless  power  and  eloquence — a  vivid  and  glowing  description  of 
which  has  been  drawn  by  the  graphic  pen  of  Mr.  Wirt.  Richard 
Henry  Lee  followed,  and  charmed  with  his  graceful  eloquence  an 
audience  that  had  been  spell-bound  by  the  more  potent  declamation 
of  his  colleague.  As  he  closed,  Mr.  Chase,  a  delegate  from  Maryland, 
whispered  into  the  ear  of  one  of  his  colleagues,  "  we  may  as  well 
go  home  -?  we  cannot  legislate  with  these  men."  The  whole  assembly 
seemed  to  acknowledge  their  superiority.  Lee  was  made  chairman 
of  the  committee  to  prepare  the  address  to  the  People  of  Great 
Britain  ;  and  Henry  of  the  committee  to  prepare  the  address  to  the 
King.  It  soon  became  apparent,  however,  that  their  superiority  con- 
sisted in  powers  of  eloquence  alone.  The  address  of  Lee  fell  far 
short  of  the  high  expectations  that  had  been  raised.  Its  reading 
disappointed  the  whole  assembly.  "  After  all,"  remarked  Mr.  Chase, 
with  that  quick  perception  and  ready  boldness  which  so  strongly 
characterized  his  mind,  "  they  are  but  men,  and  very  common  men, 
too."*  After  some  faint  and  equivocal  compliments,  the  address  was 
laid  on  the  table,  and  Gov.  Livingston  and  John  Jay  were  appointed 
upon  the  committee.  The  result  was,  as  we  have  seen,  the  production 
of  an  address  which  the  Congress  adopted — an  address  worthy  of 
the  men  and  of  the  occasion,  and  fully  equal  to  the  crisis  which  called 
it  forth. 

Mr.  Jay  was  now  actively  and  warmly  enlisted  in  the  cause  of  the 
Colonies.  A  full  review  of  his  career  from  the  tune  when  he  first 
took  his  seat  as  a  delegate  in  Congress  to  the  period  when  he 
accepted  the  Spanish  mission,  would  comprise  a  record  of  the  history 
of  the  Colonial  struggle.  The  limits  of  the  present  sketch  will  not 
permit  a  detail,  much  less  a  discussion  of  these  stirring  events,  and  all 
that  can  be  admitted  here,  is  to  indicate  generally  and  briefly,  the  part 
taken  in  them  by  the  subject  of  this  memoir. 

The  first  Revolutionary  Congress,  after  a  brief  session,  adjourned 
to  meet  again  on  the  10th  of  May  in  the  following  year.  Accordingly, 
at  that  time,  the  Congress  assembled  at  Philadelphia.  It  continued 
its  session,  with  the  exception  of  a  brief  recess  in  the  month  of 

bore  the  palm  for  eloquence  in  debate,  yet  "  for  that  of  the  pen,  the  first  place 
must  unquestionably  be  awarded  to  Mr.  Jay,  of  New  York." 
•  Wirt's  Life  of  Patrick  Henry. 


JOHN  JAY.  H 

August,  during  the  remainder  of  the  year.  The  decisive  action 
which  attended  the  deliberations  of  this  Congress  is  well-known. 
The  crisis  was  now  at  hand — the  battle  of  Lexington  had  been 
fought — the  alternative  presented  was  armed  resistance,  or  abject 
submission  and  slavery.  A  new  set  of  ideas  seemed  to  have  been 
developed.  The  revolutionary  mind  had  been  ripened  and  matured  in 
a  day.  A  profound  lesson  of  experience  had  been  learned,  and  a  vast 
stride  taken  in  the  direction  of  Colonial  independence.  It  was  no 
longer,  as  at  the  opening  of  the  first  Congress,  a  question  of  non-im- 
portation— of  peaceable  remonstrance.  The  aspect  of  affairs  had 
changed,  and  it  had  become  a  question,  which  might  well  have  made 
the  boldest  hesitate,  of  armed,  open,  determined,  and  manly  resistance. 
But  the  men  of  the  Continental  Congress  did  not  falter.  The  crisis 
was  met,  boldly  and  manfully  ;  an  army  was  organized  ;  Washington 
appointed  commander-in-chief ;  subordinate  officers  nominated,  among 
whom,  on  motion  of  Mr.  Jay,  John  Sullivan,  a  modest  and  unobtrusive 
delegate  from  New  Hampshire,  was  commissioned  a  Brigadier-General 
in  the  American  army. 

The  important  part  taken  by  Mr.  Jay  hi  the  deliberations  of  this 
Congress  must  be  passed  hastily  over,  and  I  can  barely  allude  to  a 
few  prominent  public  acts  hi  which  he  was  engaged.  His  active  and 
vigorous  pen  was  almost  ceaselessly  at  work,  and  his  voice  was  fre- 
quently heard  in  the  deliberations  of  the  assembly.  He  was  a 
member  of  the  committee  which  prepared  the  DECLARATION  setting 
forth  the  causes  and  necessity  of  the  Colonies  taking  up  arms.* 
He  was  also  upon  the  committee  appointed  to  carry  out  the  measure 
originated  by  himself,  of  presenting  a  petition  to  the  sovereign  to 
redress  the  grievances  of  the  Colonies,  the  rejection  of  which  left  no 
alternative  but  armed  resistance.  By  direction  of  Congress  he  pre- 
pared aa  address  to  the  people  of  Canada.  He  also  wrote  the 
celebrated  address  to  the  people  of  Jamaica  and  Ireland,  in  which 
he  depicted  in  vivid  colors  the  injuries  which  the  Colonies  had  suffer- 

*  Mr.  Jefferson  and  Mr.  Dickinson  were  subsequently  added  to  this  committee. 
The  address  of  the  committee  was  drawn  by  Jefferson,  but  being  considered  "  too 
bold,"  it  was  remodelled  by  Mr.  Dickinson.  It  is  a  remarkable  fact  that  this  ad- 
dress, though  reported  only  a  year  before  the  Declaration  of  Independence,  dis- 
claims all  design  to  dissolve  the  union  between  Great  Britain  and  the  Colonies. 


12  LIVES  OF  THE  CHIEF-JUSTICES. 

ed,  and  traced  the  origin  -of  their  rights  and  the  grounds  of  their 
resistance. 

Though  a  less  prominent  member  of  this  Congress  than  some  of 
his  distinguished  compatriots — though  neither  a  Henry,  a  Rutledge, 
nor  an  Adams,  La  the  rare  gifts  of  an  impassioned  eloquence — still 
it  is  not  claiming  too  high  a  distinction  for  the  zeal,  patriotism, 
ability,  and  modest  worth  of  John  Jay,  to  place  him  in  the  very 
front  rank  of  those  illustrious  men  who  laid  the  foundations  of  the 
Republic. 

The  Continental  Congress,  it  is  well  known,  was  a  mere  conven- 
tion of  delegates,  a  body,  organized,  it  is  true,  but  without  specific 
objects,  real  authority,  or  definite  powers.  The  Congress  was  of 
itself  neither  a  sovereignty  nor  the  representative  of  a  sovereignty. 
The  union  of  the  colonies  was  little  more  than  a  league,  and  even 
after  the  declaration  of  independence  it  was  a  league  scarcely  of 
independent  states,  for  though  social  institutions  remained,  yet  the 
political  fabric  had  been  swept  away  by  revolution,  and  the  labor  of 
organization  and  reconstruction  was  yet  to  be  done.  This  was  the 
work  of  some  of  the  best  and  wisest  men  in  the  respective  states  of 
the  confederacy.  ID  the  State  of  New  York  it  was  eminently  the 
work  of  John  Jay. 

While  yet  a  delegate  in  Congress,  Mr.  Jay  had  been  elected,  in 
the  month  of  April,  1776,  to  the  New  York  Colonial  Convention. 
He  took  his  seat  in  that  body  on  the  25th  of  May,  without  resigning 
his  commission  as  a  member  of  Congress.  It  seems  to  have  been 
his  intention  to  return,  but  the  New  York  Convention  required  his 
attendance,  and,  as  he  informs  his  colleague,  Mr.  Duane,  "  directed 
me  not  to  leave  them  till  further  orders."  And  thus  he  was  deprived 
of  the  honor  of  affixing  his  signature  to  the  DECLARATION  OP 
INDEPENDENCE.  But  while  his  name  is  not  attached  to  that  noble  in- 
strument, the  records  of  the  New  York  Provincial  Convention  attest 
the  warmth  and  ardor  of  his  approval  of  the  act.  From  the  com- 
mittee to  which  it  was  referred  in  the  Convention,  Mr.  Jay  as  chair- 
man reported  immediately  the  following  resolution,  which  was  unani- 
mously adopted  : 

"  Resolved,  unanimously,  That  the  reasons  assigned  by  the  Conti- 
nental Congress  for  declaring  these  united  Colonies  free  and  inde- 


JOHN  JAY.  13 

pendent  States,  are  cogent  and  conclusive,  and  that  while  we  lament 
the  cruel  necessity  which  has  rendered  that  measure  unavoidable,  we 
approve  the  same,  and  will  at  the  risk  of  our  lives  and  fortunes,  join 
with  the  other  colonies  in  supporting  it." 

This  resolution  was  adopted  on  the  day  of  the  opening  of  the  Con- 
vention, July  9th,  1776.  It  is  somewhat  remarkable  that  thongh 
Chancellor  Livingston  was  a  member  of  the  committee  which 
drafted  the  Declaration  of  Independence,  of  which  Jefferson  was 
chairman,  yet  his  name  is  not  found  attached  to  that  instrument. 
The  fact  is,  that  though  the  declaration  purports  to  be  "  the  unani- 
mous declaration,"  &c.,  yet  the  Chancellor  and  some  other  members 
of  the  Congress  thought  it  premature.  Indeed  the  whole  New 
York  delegation  asked  and  obtained  leave  to  retire,  on  the  ground, 
that  having  been  appointed  when  a  reconciliation  with  Great 
Britain  was  possible,  they  did  not  regard  themselves  as  empowered 
to  sign  this  important  manifesto.  None  of  the  New  York  members 
signed  it  until  after  it  was  approved  by  the  New  York  Convention  ; 
and  it  was  not  nntil  the  15th  of  July  that  their  signatures  were 
actually  placed  to  the  Declaration.  To  John  Jay,  therefore,  though 
his  name  does  not  appear  attached  to  that  celebrated  instrument,  is 
justly  due  the  credit  of  having  promptly  and  boldly  taken  the  first 
official  step  toward  the  recognition  by  the  State  of  New  York  of 
American  Independence. 

The  new  STATE  CONVENTION  was  called  in  pursuance  of  a  resolu- 
tion of  the  Continental  Congress,  recommending  to  the  respective 
Colonies  the  adoption  of  independent  governments.  The  former 
Assembly,  to  which  Mr.  Jay  had  been  summoned  from  his  seat  in 
Congress,  having  been  convened  while  the  Colony  was  yet  under  the 
government  of  the  Crown,  had  been  established  for  the  sole  purpose 
of  opposing  the  encroachments  of  the  British  parliament,  and  not 
with  a  view  of  declaring  the  Colony  independent,  and  establishing 
a  new  form  of  government.  To  remove  all  doubts  whether  the 
Assembly  was  invested  with  authority  to  deliberate  and  act  on  these 
important  questions,  the  Colonial  assembly,  on  the  31st  May,  had, 
on  motion  of  Mr.  Jay,  called  a  CONVENTION  to  constitute  and  estab- 
lish a  new  government.  This  body  met  at  White  Plains  on  the  9th 
July,  1776,  and,  as  has  been  noticed,  immediately  ratified  and  con- 


14:  LIVES  OF  THE  CHIEF-JUSTICES. 

firmed  unanimously  the  Declaration  of  the  Independence  of  the 
Colonies.  This  first  decisive  step  having  been  taken,  nothing 
remained  but  to  establish  a  constitution  and  organize  the  new  govern- 
ment. 

The  Convention  comprised  a  large  share  of  the  best  intellect  and 
worth  of  the  Colony.  Mr.  Jay  found  himself  associated  with  such 
men  as  Philip  Livingston  and  James  Duane  of  New  York,  Robert 
R.  Livingston  of  Dutchess,  the  future  Chancellor,  Leonard  Ganse- 
voort  and  Robert  Yan  Rensselaer  of  Albany,  Gouverneur  Morris, 
Pierre  Van  Cortlandt  and  Lewis  Morris  of  Westchester.  It  is 
certainly  no  small  compliment  to  the  ability  and  character  of  Mr. 
Jay,  still  a  young  man,  but  little  more  than  thirty  years  of  age,  that 
in  a  Convention  numbering  among  its  members  such  men  as  the 
Livingstons,,  the  Morrises,  and  their  illustrious  associates,  he  should 
have  been  selected  as  the  delegate  to  be  charged  with  the  responsible 
and  arduous  duty  of  drafting  a  Constitution  for  the  new  Common- 
wealth. Being  assigned  this  duty  and  placed  at  the  head  of  the  com- 
mittee created  for  that  purpose  during  the  first  month  of  the  Conven- 
tion, he  at  once  directed  the  whole  power  of  his  mind,  and  the  resources 
of  his  political  experience  and  judicial  learning  to  attain  the  great  end 
in  view,  namely  the  drafting  of  a  Constitution  fit  to  be  established  as 
the  fundamental  law  of  a  free  people. 

It  may  here  be  remarked,  that  the  idea  of  a  written  Constitution, 
emanating  from  and  sanctioned  by  the  people,  as  the  basis  of  gov- 
ernment and  political  and  social  rights,  if  not  entirely  a  novel  idea, 
was  at  least,  practically,  an  untried  experiment,  prior  to  the  forma- 
tion of  the  State  Constitutions.  It  had  been  hinted  at  and  par- 
tially developed  by  some  of  the  liberal  writers  and  statesmen  during, 
and  subsequent  to,  the  period  of  the  English  Revolution.  Vane, 
Sidney,  and  Locke,  had  successively  entertained  the  subject  as  an 
abstract  political  truth,  and  the  latter  had  even  attempted  its  prac- 
tical development.*  But  it  is  not  too  much  to  say  that  it  remained 
a  theory  only,  and  that  hitherto  no  successful  instance  of  a  written 

*  In  the  Carolina  colonies.    This  curious  Constitution,  almost  as  elaborate 
unique  and  original  in  its  way  as  that  remarkable  instrument  which  more  than 
century  afterward  Sieyes  presented  to  Bonaparte,  was  adopted  by  the  Proprieta- 
ries, but  after  a  few  years  wasted  in  attempting  to  put  it  into  practical  operation  it 
proved  itself  a  miserable  failure,  and  was  abandoned. 


JOHN  JAY.  15 

constitution  or  fundamental  law  had  existed  in  Christendom.  The 
Bill  of  Rights,  the  charters  of  some  of  the  Colonies,  and  particularly 
those  established  in  one  or  two  of  the  proprietary  governments, 
such,  for  example,  as  the  "  Concessions  of  the  proprietors  of  New 
Jersey  with  the  people  who  might  settle  or  plant  there,"  approximated 
this  idea  of  a  written  Constitution,  but  did  not  wholly  realize  it. 
The  Bill  of  Rights  was  in  the  nature  of  a  compact  between  king  and 
people  ;  the  Colonial  charters  were  royal  grants,  not  resting  upon,  but 
independent  of  the  popular  sovereignty  ;  the  proprietary  governments 
were  what  they  claimed  to  be,  concessions  to  the  people,  not  original 
and  elementary  popular  rights.  It  remained  for  the  Colonists  to  put 
in  successful  operation  this  new  political  experiment,  in  the  formation 
and  organization  of  the  State  sovereignties — an  experiment,  destined, 
a  few  years  later,  to  be  crowned  with  complete  success  in  the  adoption 
of  the  Federal  Constitution. 

The  first  Constitution  of  the  State  of  New  York  was  mainly  the 
work  of  John  Jay.  It  was  reported  on  the  6th  of  March,  1117, 
and  adopted  the  20th  of  April  of  the  same  year,  at  the  village  of 
Kingston,  to  which  place  the  Convention  had  removed.  This  Con- 
stitution, which  contained  for  nearly  half  a  century  the  fundamental 
law  of  the  State,  is  a  monument  to  the  memory  of  its  illustrious 
author  more  lasting  than  a  monument  of  brass  or  marble.  I  do  not 
mean  to  assert  that  the  Constitution  was  all  that  it  might  have  been — 
that  it  was  a  perfect  production — that  it  contained  no  imperfections 
and  no  errors.  On  the  contrary,  experience  demonstrated  the 
necessity  of  amendment  ;  a  trial  of  forty-five  years  proved  that  it 
was  susceptible  of  material  alterations  ;  the  progress  of  the  age 
and  the  march  of  liberal  ideas  opened  the  door  to  improvement  ;  but 
it  is  not  too  much  to  say  that  in  the  circumstances  under  which  this 
Constitution  was  promulgated,  and  in  view  of  the  habits,  customs, 
and  ideas  of  the  age,  it  was  an  original  and  vigorous,  as  well  as  a 
successful  innovation,  and  it  stamped  its  author  as  a  bold  and  radical 
but  judicious  reformer. 

All  the  guarantees  of  English  liberty  secured  in  the  Bill  of  Rights 
were  carefully  preserved  in  this  Constitution, — the  trial  by  jury,  the 
habeas  corpus,  and  the  privilege  of  the  accused  to  defend  by  counsel. 
All  political  power  was  declared  to  be  derived  from  the  people.  In 


16  LIVES   OF    THE  CHIEF-JUSTICES. 

addition  to  this,  the  free  exercise  and  enjoyment  of  religious  worship 
was  established,*  and  the  right  of  the  people  to  bear  arms  in  their 
own  defence  recognized  and  secured.  Ten  years  afterwards,  in  the 
Federal  Convention,  Hamilton  proposed,  and  sustained,  in  a  speech 
of  surpassing  power,  the  project  of  appointing  an  executive  and  Sen- 
ate, to  hold  for  life  or  during  good  behavior.  But  Jay,  even  at  this 
early  day,  comprehended  the  more  correct  idea  of  popular  govern- 
ment. The  New  York  Constitution  provided  for  the  election  of  an 
executive  to  hold  office  for  three  years,  a  Senate  for  four  years,  and 
an  annual  Assembly.  The  voting  by  ballot  was  not  definitely  estab- 
lished ;  it  was  left  to  be  determined  by  the  Legislature,  a  provision 
which  may  be  regarded  as  the  effect  of  excessive  caution  and  pru- 
dence, if  not  of  timidity,  but  one  which  the  state  of  the  tunes  and  the 
novelty  of  the  experiment  at  that  day  might  justify.  So  too  in 
regard  to  the  property  qualification  attached  to  the  elective  franchise, 
and  the  qualifications  for  office,  the  provisions  of  the  Constitution 
fell  far  short  of  what  we  now  regard  as  the  correct  and  legitimate 
rule  of  political  action,  but  at  that  day,  when  the  colonists  were  just 
emancipated  from  British  tutelage,  and  aristocratic  customs  and 
notions  of  hereditary  right  still  prevailed,  this  section  of  thei Constitu- 
tion was  a  sensible  reform,  if  not  a  radical  revolution.  The  provision 
that  "  a  wise  and  discreet  freeholder  of  this  State  shall  be,  by  ballot, 
elected  Governor,  by  the  freeholders  of  this  State,  qualified  as  before 
described,  to  elect  Senators  " — that  is  possessing  a  freehold  of  forty 
pounds,  or  renting  a  tenement  of  the  yearly  value  of  forty  shillings, — 
was  but  a  step  from  asserting  the  great  principle  of  UNIVERSAL  SUF- 
FRAGE, which  was  established  by  the  Constitution  of  1821  as  the  basis 
of  representative  democracy. 

As  to  the  social  institutions  of  the   State,   the   Constitution  left 

*  la  regard  to  this  clause,  Mr.  Jay,  in  his  celebrated  charge  to  the  Grand  Jury, 
at  Kingston,  uses  these  noble  and  dignified  expressions.  "  Every  man  is  permitted 
to  consider,  to  adore,  and  to  worship  his  Creator  in  the  manner  most  agreeable  to 
his  conscience.  No  opinions  are  dictated,  no  rules  of  faith  prescribed,  no  prefer- 
ence given  to  one  sect  to  the  prejudice  of  others."  *  "  In  a  word,  the 
Convention  by  whom  that  Constitution  was  formed,  were  of  opinion  that  the 
Gospel  of  Christ,  like  the  ark  of  God,  would  not  fall,  though  unsupported  by  the 
arm  of  flesh  ;  and  happy  would  it  be  for  mankind  if  that  opinion  prevailed  more 
generally." 


JOHN  JAY.  17 

them  very  nearly  in  the  position  it  found  them.  The  revolution  was 
purely  political.  The  Convention  did  not  undertake  to  meddle  with 
the  laws  of  property,  the  domestic  relations,  or  indeed  in  any  other 
respect  with  the  judicial  polity  of  the  State.  Accordingly,  the  Con- 
stitution re-enacted  and  established  as  the  law  of  the  State,  the 
COMMON  LAW  of  England,  and  such  parts  of  prior  statutes,  both 
acts  of  Parliament,  and  acts  of  the  Colonial  Legislature,  as  were 
applicable  and  not  repugnant  to  the  Constitution,  with  the  restric- 
tion, that  all  such  parts  thereof  as  might  be  construed  "  to  establish 
or  maintain  any  particular  denomination  of  Christians  or  their  minis- 
ters, or  concern  allegiance  heretofore  yielded  to,"  &c.,  be  abrogated 
and  rejected. 

Such  were  the  main  features  of  the  Constitution  of  1717.  It  may 
be  remarked  that  Jay  himself  was  not  entirely  satisfied  with  it.  The 
vote  on  its  final  passage  was  taken  during  his  temporary  absence 
from  the  Convention,  and  some  additional  sections  had  been  added 
which  he  disapproved  ;  what  these  sections  were,  does  not  clearly 
appear.  '  He  intended  also,  he  says,  to  have  moved  several  amend- 
ments, one  for  the  support  of  literature,  one  against  the  continuance 
of  slavery  in  the  State,  and  one  requiring  all  persons  taking  office 
to  swear  allegiance  to  the  government,  and  renounce  all  allegiance  to 
foreign  kings,  princes  and  states  in  all  matters,  ecclesiastical  as  well  as 
civil. 

Approving,  however,  the  main  features  of  the  new  Constitution, 
Mr.  Jay  devoted  his  best  efforts  to  the  task  of  setting  it  practically 
in  operation.  In  the  organization  of  the  courts  under  it,  the  Con- 
vention tendered  him  the  place  of  Chief-Justice  of  the  Supreme 
Court,  which  he  at  once  accepted,  Livingston  being  at  the  same 
time  appointed  Chancellor.  The  Convention  then  adjourned,  after 
appointing  a  "  Council  of  Safety,"  of  which  Jay  was  a  member,  in 
whose  hands  was  vested  the  absolute  sovereignty  of  the  State  during 
the  interim  between  the  adjournment  and  the  organization  of  the 
new  government.  This  Committee  was  armed  with  plenary  and  un- 
limited power.  It  was  indeed  an  arbitrary  dictatorship.  The  crisis 
was  such  as  seemed  to  demand  it,  for  the  darkest  hour  of  the  revo- 
lution had  come.  That  power  was  exercised  vigorously,  but  wisely 
and  discreetly.  It  was  wielded  with  tremendous  effect,  but  not 
2 


18  LIVES  OP    THE  CHIEF-JUSTICES. 

abused.  It  was  the  power  which  in  a  similar  case  was  lodged  by  the 
French  Convention  in  the  hands  of  the  Committee  of  Public  Welfare, 
but  it  was  used  for  wiser  and  better  ends,  for  there  were  no  Couthons 
and  Robespierres  upon  the  New  York  Council  of  Safety.  The 
measures  adopted  against  the  royalists  were  such  as  the  exigency  of 
the  times  demanded.  They  were  vigorous,  stringent,  severe.  The 
jails  and  churches  were  filled  with  prisoners.  Banishment  and  confis- 
cation became  the  order  of  the  day.  But  these  measures,  though 
harsh  and  rigorous  were  tempered  with  as  much  mildness  as  the  nature 
of  the  case  would  admit.  No  member  of  that  Committee,  and  least 
of  all  John  Jay,  is  liable  to  the  charge  of  wielding  political  power  for 
the  purposes  of  individual  oppression. 

One  of  the  finest  traits  in  the  character  of  Jay  was  the  warmth  of 
his  social  feelings,  and  the  constancy  of  his  friendships.  Adversity 
never  separated  him  from  his  early  associates,  nor  did  political 
differences  cause  him  to  forget  the  attachments  of  other  days.  It 
was  during  the  administration  of  the  Council  of  Safety  that  the  for- 
midable invasion  of  Burgoyne  threatened  the  safety  of  New  York. 
General  Philip  Schuyler  at  that  time  had  command  of  the  army  of 
the  north.  Jay  was  the  friend  of  Schuyler  ;  he  knew  and  appre- 
ciated the  worth,  the  patriotism,  the  chivalric  honor,  of  that  brave 
officer  and  gallant  gentleman,.  In  a  moment  of  weakness,  Congress, 
yielding  either  to  false  and  malicious  representations,  or  a  timid 
policy,  recalled  Schuyler  at  the  very  moment  when  victory  was 
within  his  grasp,  and  placed  Gates  in  command.  Schuyler  felt  the 
indignity,  but  with  the  generous  magnanimity  of  his  character,  sacri- 
ficing every  personal  feeling  to  the  cause  of  his  country,  cheerfully 
co-operated  with  the  plan  of  the  campaign,  and  aided  Gen.  Gates 
to  reap  the  laurels  which  justly  belonged  to  himsolf.  Among  the 
friends  who  adhered  through  good  report  and  through  evil  report  to 
Schuyler,  and  who  never  failed  to  vindicate  his  reputation,  none  was 
truer  or  more  faithful  than  Jay.  Sharing  the  same  ancestral 
blood,  the  blood  of  the  early  Dutch  settlers  of  the  colony,  and  satis- 
fied with  the  entire  correctness  of  Schuyler's  conduct,  as  well  as  the 
purity  of  his  motives,  Jay  did  not  conceal  his  indignation  at  this  act 
of  injustice.  In  a  letter  to  Mr.  Duane,  then  in  Congress,  he  ex- 
presses what  he  conceives  to  be  the  true  reason.  "  General  Schuy- 


JOHN   .JAY.  19 

ler  is  recalled,"  he  says,  "  to  humor  the  eastern  peopk,  who  declare  that 
their  militia  will  not  fight  under  his  command."  The  warmth 
of  his  friendship,  and  the  delicacy  of  his  sympathy,  are  beautifully 
expressed  in  two  or  three  letters  to  Schuyler  himself  about  this 
period.  In  one  of  these,  written  some  months  after  the  victory  of 
Saratoga,  and  while  the  laurels  were  yet  fresh  and  green  upon  the 
brow  of  the  commanding  general,  Jay,  with  his  accustomed  delicacy 
of  expression,  ventures  to  predict  what  the  future  has  fully  real- 
ized, and  posterity  cordially  admits.  "  Justice  will  yet  take  place, 
and  I  do  not  despair  of  seeing  the  time  when  it  will  be  confessed  that 
the  foundation  of  our  success  in  the  northern  department  was  laid  by 
the  present  commander's  predecessor." 

Not  only  to  political  associates,  but  even  to  political  opponents, 
did  Jay  evince  the  kindliness  of  a  generous  nature  ;  and  he  never 
failed  to  respond  to  the  recollections  of  early  attachments.  Few 
among  the  revolutionary  leaders  originated,  advocated,  and  carried 
out  more  stringent  and  effective  measures  against  the  royalists  and 
the  disaffected,  and  yet  he  was  never  deaf  to  the  voice  of  private 
friendship,  and  never  disregarded  the  appeal  of  one  to  whom  he  had 
been  kindly  attached  in  other  days.  To  his  old  classmate  at  King's 
College,  Peter  Van  Schaack,  who  had  from  conscientious  motives 
declined  taking  a  part  with  the  colonists,  he  writes  with  a  feeling  of 
the  liveliest  interest ;  and  the  cordial  intercourse  is  renewed  when 
one  is  the  honored  representative  of  his  country,  and  the  other  an 
exile  in  a  foreign  land.  To  Col.  De  Lancey,  who  had  taken  arms 
in  the  royal  cause,  and  who  was  a  prisoner  on  parole,  he  writes 
during  the  troubles  of  1778  :  "  The  friendship  which  subsisted  be- 
tween us  is  not  forgotten  ;  nor  will  the  good  offices  formerly  done 
by  yourself  and  family  cease  to  excite  my  gratitude.  How  far  you 
may  be  comfortable  and  easy  I  know  not.  It  is  my  wish,  and  shall 
be  my  endeavor,  that  it  be  as  much  so  as  may  be  consistent  with 
the  interest  of  that  great  cause  to  which  I  have  devoted  every  thing  I 
hold  dear  in  this  world." 

John  Jay  was  a  revolutionist,  but  no  terrorist.  He  was  resolute, 
stern,  and  inflexible,  but  not  prescriptive.  His  was  the  uncompro- 
mising action  based  upon  principle,  not  prompted  by  personal  en- 
mity. He  had  not  a  grain  of  bitterness  in  him,  not  a  drop  of 


20  LIVES  OF   THE   CHIEF-JUSTICES. 

malice,  not  the  slightest  tincture  of  vindictiveness.  Firm,  resolute, 
and  unbending,  but  equable,  magnanimous,  generous  and  just,  a  man 
to  suffer,  rather  than  do  a  wrong,  like  Aristides  he  would  have 
calmly  written  his  own  name  upon  the  shell,  and  without  a  regret  or 
a  sigh,  have  retired  into  banishment. 

The  new  State  government  went  into  operation  in  September, 
1777.  Jay  having  refused  to  be  a  candidate  for  Governor,  George 
Clinton  was  elected  to  that  office,  and  Pierre  Yan  Cortlandt  Lieu- 
tenant-Governor.  Walter  Livingston  was  chosen  speaker  of  the 
Assembly.  The  Legislature  promptly  re-appointed  Mr.  Jay  Chief- 
Justice  of  the  Supreme  Court,  and  Robert  R.  Livingston  Chancellor. 

It  was  but  a  few  days  before  this  re-appointment  that  the  Chief- 
Justice  held  the  first  court  under  the  State  Constitution.  It  met  at 
the  village  of  Kingston,  on  the  9th  of  September,  1777.  The  ch> 
cumstances  under  which  it  had  convened  were  peculiar.  The  inde- 
pendence of  the  State  had  been  declared,  but  that  independence  had 
not  been  established.  A  powerful  army  under  Burgoyne  was  ap- 
proaching Albany  ;  another  army  was  preparing  to  advance  up  the 
Hudson  to  effect  a  junction  with  the  first,  and  in  a  few  weeks  after, 
actually  destroyed  the  very  village  in  which  the  court  was  assem- 
bled. To  administer  justice  under  the  authority  of  the  State  was  a 
crime  and  a  treason  against  the  British  government,  still  claiming 
jurisdiction.  It  required,  therefore,  a  portion  of  that  same  unflinch- 
ing resolution,  and  sublime  moral  courage,  which  nerved  the  men 
who  declared  the  independence  of  the  colonies,  to  carry  out  fully 
and  effectually  this  novel  undertaking.  The  Chief-Justice  was  equal 
to  the  task.  He  did  not  hesitate,  he  did  not  doubt.  He  had  entire 
faith  in  the  success  of  the  revolution ;  faith  in  the  people  ;  faith  hi 
the  new  Constitution  which  had  been  adopted  ;  faith  in  the  ultimate 
issue  of  the  contest.  He  presided  during  the  session  of  the  court 
with  a  calm  dignity,  an  intrepid  courage,  a  confident  assurance  of 
rectitude  which  did  not  fail  to  impress  itself  upon  the  people.  His 
charge  to  the  Grand  Jury  was  such  as  it  might  have  been  if  the 
independence  of  the  State  had  been  already  acknowledged,  and  the 
foot  of  the  enemy  no  longer  desecrated  American  soil.  The  follow- 
ing passages  are  worthy  of  remark  : 

"  It  affords  me,  gentlemen,  very  sensible  pleasure  to  congratulate 


JOHN  JAY.  21 

you  on  the  dawn  of  that  free,  mild,  and  equable  government  which 
now  begins  to  rise  and  break  from  amid  those  clouds  of  anarchy, 
confusion,  and  licentiousness  which  the  arbitrary  and  violent  domi- 
nation of  Great  Britain  had  spread  in  greater  or  less  degree  through- 
out this  and  the  other  American  states.  This  is  one  of  those  signal- 
instances  in  which  Divine  Providence  has  made  the  tyranny  of  princes 
instrumental  in  breaking  the  chains  of  their  subjects,  and  rendered 
the  most  inhuman  designs  productive  of  the  best  consequences  to 
those  against  whom  they  were  intended. 

"  The  infatuated  sovereign  of  Great  Britain,  forgetful  that  kings 
were  the  servants,  not  the  proprietors,  and  ought  to  be  the  fathers, 
not  the  incendiaries  of  their  people,  hath,  by  destroying  our  former 
constitutions,  enabled  us  to  erect  more  eligible  systems  of  govern- 
ment on  their  ruins  ;  and  by  unwarrantable  attempts  to  bind  us  in 
all  cases  whatever,  has  reduced  us  to  the  happy  necessity  of  being  free 
from  his  control  in  any. 

"  Whoever  compares  our  present  with  our  former  Constitution, 
will  find  abundant  reason  to  rejoice  in  the  exchange,  and  readily 
admit  that  all  the  calamities  incident  to  this  war  will  be  amply  com- 
pensated by  the  many  blessings  flowing  from  this  glorious  revolution — 
a  revolution  which  in  the  course  of  its  rise  and  progress  is  distin- 
guished by  so  many  marks  of  the  Divine  favor  and  interposition  that 
no  doubt  can  remain  of  its  being  finally  accomplished." 

The  Chief-Justice,  after  commenting  upon  several  features  of  the 
new  Constitution  in  terms  of  unqualified  approbation,  particularly  that 
relative  to  the  rights  of  conscience  and  private  judgment  in  matters  of 
religion,  and  freedom  of  religious  worship,  remarks  : 

"  But  let  it  be  remembered,  that  whatever  marks  of  wisdom,  ex- 
perience, and  patriotism  there  may  be  in  your  Constitution,  yet  like 
the  beautiful  symmetry,  the  just  proportion,  and  elegant  forms  of  our 
first  parents  before  their  Maker  breathed  into  them  the  breath  of 
life,  it  is  yet  to  be  animated,  and  till  then  may  indeed  excite  admi- 
ration, but  will  be  of  no  use.  From  the  people  it  must  receive  its 
spirit,  and  by  them  be  quickened.  Let  virtue,  honor,  the  love  of 
liberty  and  of  science  be  and  remain  the  soul  of  this  Constitution, 
and  it  will  become  the  source  of  great  and  extensive  happiness  to 
this  and  future  generations.  Vice,  ignorance,  and  waK  ^f  vigilance 


22  LIVES  OF    THE  CHIEF-JUSTICES. 

will  be  the  only  enemies  able  to  destroy  it.  Against  these  be  forever 
jealous." 

Mr.  Jay  retained  the  office  of  Chief-Justice  of  the  Supreme-  Court 
two  years.  He  did  not,  however,  actively  discharge  its  duties  dur- 
ing the  whole  of  this  period  On  the  10th  November,  1718,  the 
Legislature  elected  him  a  delegate  to  represent  the  State  in  Con- 
gress. By  the  Constitution,  a  Judge  of  the  Supreme  Court  was 
prohibited  from  holding  any  other  office,  except  that  of  delegate  in 
Congress,  on  a  special  occasion.  The  controversy  respecting  the  "  New 
Hampshire  Grants"  having  arisen,  this  was  voted  a  special  occasion, 
and  the  Chief-Justice  was  delegated  to  Congress  without  vacating 
his  seat  on  the  bench.  On  the  10th  of  December,  three  days  after 
he  took  his  seat,  he  was  chosen  President  of  Congress.  Conceiving 
his  continued  residence  at  Philadelphia  inconsistent  with  the  discharge 
of  the  duties  of  Chief- Justice  of  the  Supreme  Court  of  New  York, 
Mr.  Jay  during  the  following  year  resigned  his  Judicial  office. 
Governor  Clinton  at  first  refused  to  receive  the  resignation.  Mr. 
Jay,  however,  persisted  ;  and,  after  some  delay,  the  resignation  was 
accepted  ;  thenceforth  he  devoted  his  entire  services  to  the  duties 
connected  with  his  attendance  in  Congress. 

Mr.  Jay  retained  his  place  as  President  of  Congress  nearly  a  year, 
during  which  time  he  discharged  its  duties  with  a  dignity,  an  urban- 
ity, and  an  impartiality,  which  commanded  universal  respect.  The 
subject  of  the  currency,  and  the  emission  of  bills  of  credit,  at  that 
time,  attracted  the  serious  attention  of  Congress.  The  depreciation 
of  the  currency  and  the  prostration  of  public  credit  were  appalling. 
Congress  was  literally  bankrupt,  and  the  means  of  continuing  the 
contest  seemed  no  where  to  be  found.  Besides  the  sum  of  nearly 
forty  millions  of  dollars  borrowed  abroad,  Congress  had  put  in  cir- 
culation bills  to  the  enormous  amount  of  $160,000,000,  for  the  pay- 
ment of  which  the  public  faith  was  pledged.  This  paper  currency 
had  become  absolutely  worthless,  so  much  so  that  it  was  literally 
true,  as  was  remarked  at  the  tune,  that  a  cart-load  of  provision 
could  be  purchased  only  with  a  cart-load  of  money.  In  this  emer- 
gency, Congress,  feeling  the  necessity  of  at  once  replenishing  the 
public  treasury  and  restoring  the  public  confidence,  passed  a  resolu- 
tion that  no  more  bills  should  be  issued  than  sufficient  to  make  the 


JOUN  JAY.  23 

entire  sum  $200,000,000.  A  resolution  was  also  passed  calling  upon 
the  states  for  supplies  by  state  loans  and  taxes,  and  the  President, 
Mr.  Jay,  was  directed  to  prepare  an  address  to  the  people  of  the 
respective  states  of  the  confederacy,  in  regard  to  these  objects.  That 
celebrated  and  justly  admired  paper,  the  "  Circular  letter  from  Con- 
gress to  their  Constituents,"  bears  date  on  the  13th  September,  1179, 
and  is  signed  by  Jay  as  President  of  the  Congress.  It  is  a  clear  and 
forcible  statement  of  the  condition  of  affairs,  particularly  with  refer- 
ence to  the  question  of  finance,  and  a  most  ardent  and  earnest  appeal 
to  the  people  and  the  states,  to  stand  by,  assist,  and  sustain  the  honor 
of  the  confederacy.  Not  the  least  noticeable  feature  in  this  ad- 
mirable address  is  the  bold  and  courageous  spirit,  the  tone  of  calm, 
well-grounded  confidence  as  to  the  ultimate  success  of  the  struggle, 
pervading  it.  Not  for  an  instant  does  the  author  intimate  a  doubt  as 
to  the  ability  of  the  states  to  maintain  the  independence  they  had  so 
boldly  declared.  "  That  the  time  has  been,"  he  remarks,  "  when 
honest  men  might,  without  being  charged  with  timidity,  have  doubted 
the  success  of  the  present  revolution  we  admit ;  but  that  period  is 
past.  The  independence  of  America  is  now  as  fixed  as  fate,  and  the 
petulant  efforts  of  Britain  to  break  it  down  are  as  vain  and  fruitless 
as  the  raging  of  the  waves  which  beat  against  her  cliffs."  The  appeal 
to  the  people  of  the  States  to  sustain  the  honor  of  the  Confederacy, 
to  provide  for  continuing  the  revolutionary  army  in  the  field,  and  at 
least  to  share  with  France  the  glory  of  achieving  American  inde- 
pendence, is  eloquent,  impassioned,  and  spirit-stirring  ;  in  short,  is 
worthy  the  classic  and  vigorous  pen  of  John  Jay.  The  following  are 
its  closing  sentences : 

"  The  war,  though  drawing  fast  to  a  successful  issue,  still  rages. 
Disdain  to  leave  the  whole  business  of  your  defence  to  your  ally.  Be 
mindful  that  the  brightest  prospects  may  be  clouded,  and  that  pru- 
dence bids  us  be  prepared  for  every  event.  Provide,  therefore,  for 
continuing  your  armies  in  the  field  till  victory  and  peace  shall  lead 
them  home  ;  and  avoid  the  reproach  of  permitting  the  currency  to 
depreciate  in  your  hands,  when,  by  yielding  a  part  to  taxes  and 
loans,  the  whole  might  have  been  appreciated  and  preserved.  Human- 
ity, as  well  as  justice,  makes  this  demand  on  you.  The  complaints 
of  ruined  widows,  and  the  cries  of  fatherless  children,  whose  whole 


24:  LIVES  OF    THE  CHIEF-JUSTICES. 

support  has  been  placed  in  your  hands,  and  melted  away,  have  doubt- 
less reached  you ;  take  care  that  you  ascend  no  higher.  Rouse,  there- 
fore ;  strive  who  shall  do  most  for  his  country  ;  rekindle  that  flame  of 
patriotism,  which  at  the  mention  of  disgrace  and  slavery,  blazed 
throughout  America,  and  animated  all  her  citizens  :  determine  to 
finish  the  contest  as  you  began  it,  honestly  and  gloriously.  Let  it 
never  be  said  that  America  had  no  sooner  become  independent  than 
she  became  insolvent,  or  that  her  infant  glories  and  growing  fame 
were  obscured  and  tarnished  by  broken  contracts  and  violated  faith, 
in  the  very  hour  when  all  the  nations  of  the  earth  were  admiring  and 
almost  adoring  the  splendor  of  her  rising." 

Mr.  Jay  was  now  about  to  enter  upon  a  different,  and  if  possible, 
a  more  arduous  and  responsible  sphere  of  action.  Tried  in  the  rev- 
olutionary cause,  and  in  every  branch  of  legislative  and  executive 
service,  he  had  been  found  true,  active,  discreet,  and  courageous. 
But  a  more  difficult,  and  a  new  and  untrodden  field  now  lay  before 
him.  He  was  called  upon  to  enter  upon  it.  It  was  no  enviable  post, 
no  tempting  task ;  it  promised  few  honors  and  less  emoluments.  His 
private  interests  and  his  feelings  prompted  him  to  shun  the  employ- 
ment. But  his  country  demanded  the  sacrifice,  and  it  seemed  to 
him  the  path  of  public  duty.  Jay  did  not  hesitate  as  to  the  course 
he  should  pursue.  He  accepted  the  Spanish  mission.  His  instruc- 
tions were  received  on  the  16th  October,  1179,  and  four  days  after 
he  sailed,  in  company  with  the  French  Minister,  M.  Gerard,  for 
Europe.  The  object  of  this  mission  was  two-fold.  It  was  first  to 
draw  Spain  into  the  Confederacy  against  Britain,  pursuant  to  a 
secret  clause  in  the  treaty  between  France  and  the  United  States, 
and  secondly,  to  raise  money  either  by  a  loan  or  guaranty  from 
Spain.  It  is  highly  probable  that  the  latter  was  the  more  imme- 
diate and  pressing  object.  It  was,  however,  all  the  same  to  Jay.  He 
had  enlisted  in  the  service  of  his  country  from  the  purest,  the  most 
elevated  motives,  and  was  ready  to  serve  her  wherever  he  could  be 
most  useful. 

Upon  the  threshold  of  his  theatre  of  operations  in  Spain,  the 
American  envoy  encountered  difficulties  that  would  have  discouraged 
and  baffled  a  man  of  less  moral  courage  and  resolution.  He  en- 
countered too,  annoyances,  humiliations  and  petty  vexations  that 


JOHN  JAY.  25 

would  have  exhausted  the  patience  of  a  man  of  a  less  equable  tem- 
per of  mind.  But  Jay  bravely  faced  every  difficulty,  withstood  all 
things,  endured,  conquered  all.  On  his  landing  at  Cadiz,  the  Span- 
ish government  invited  him  to  Madrid,  but  refused  to  recognize  him, 
in  a  formal  character.  "  Pains  were  taken,"  he  says  in  a  letter  to  a 
friend,  "  to  prevent  any  conduct  towards  me  that  might  savor  of  an 
admission  or  knowledge  of  American  independence."  It  seemed  to 
be  the  policy  of  Spain  rather  to  amuse  than  to  aid  the  United 
States.  She  desired  to  injure  Great  Britain,  and  would,  therefore, 
at  the  right  time  and  on  the  proper  occasion,  render  such  assistance 
to  the  revolted  colonies  as  might  accomplish  that  result,  but  such 
aid  was  to  be  rendered  only  for  a  consideration.  Certain  concessions 
were  required  to  be  made,  among  which  was  the  right  of  the 
United  States  to  navigate  the  Mississippi.  This  Jay  peremptorily 
declined,  acting  on  the  advice  given  by  Franklin,  then  in  France  : — 
"  Poor  as  we  are,  yet  as  I  know  we  shall  be  rich,  I  would  rather 
agree  with  them  to  buy  at  a  great  price  the  whole  of  their  right  on 
the  Mississippi  than  sell  a  drop  of  its  waters.  A  neighbor  might  as 
well  ask  me  to  sell  my  street  door."  In  this  Franklin  manifested 
his  accustomed  good  sense.  Alluding  to  Jay's  discouragements  and 
difficulties  in  Spain,  he  counsels  him  to  continue  "  the  even  good 
temper  you  have  hitherto  manifested."  "Spain,"  remarks  the  phi- 
losopher, in  his  usual  sententious  style,  "  owes  us  nothing  ;  therefore, 
whatever  friendship  she  shows  us  in  lending  money  or  furnishing 
clothes,  &c.,  though  not  equal  to  our  wants  and  wishes,  is,  however, 
tant  de  gagne." 

But,  in  the  mean  time,  how  were  the  hopes,  the  wishes,  nay  the 
absolute  expectations,  prompted  by  inevitable  necessity,  of  Congress 
to  be  realized  !  Money  must  be  had  somewhere.  The  supplies 
from  the  states  did  not  come  in  ;  the  continental  currency  continued 
rapidly  to  depreciate ;  the  military  chest  was  empty.  Without 
money,  without  resources,  without  credit,  absolute  bankruptcy  was 
staring  them  in  the  face.  In  this  emergency  Congress  took  an 
extraordinary  step  which  nothing  but  desperation  could  have 
prompted.  Without  the  slightest  surmise  of  what  might  be  Jay's 
reception  or  prospects  of  success  in  Spain,  nay,  without  even 
apprising  him  of  the  step  taken,  it  was  resched  to  draw  upon  him 


26  LIVES  OF  THE  CHIEF-JUSTICES. 

bills  to  .the  amount  of  half  a  million,  payable  in  six  months.  The 
Spanish  government,  after  authorizing  the  acceptance  of  these  bills 
to  the  amount  of  a  few  thousand  dollars,  informed  Mr.  Jay  that  no 
more  would  be  paid  unless  America  agreed  to  furnish  ships  of  war  as 
an  equivalent,  or  cede  to  Spain  the  sole  right  of  navigating  the 
Mississippi,  but  offered  to  guaranty  the  payment  of  $150,000  in 
three  years,  if  Mr.  Jay  could  effect  such  a  loan.  The  conditions 
imposed  by  Spain  were  rejected  ;  Jay  attempted  to  effect  the  loan, 
but  failed.  In  this  emergency,  he  resolved  upon  a  step  of  extraor- 
dinary boldness,  it  might  be  called  rashness,  a  step,  however,  not 
hastily  determined  on,  but  one  which  his  calm  judgment  dictated, 
and  his  reason  approved.  Without  any  present  prospect  of  meeting 
these  demands  as  they  fell  due,  but  with  unshaken  confidence  in 
himself,  his  country,  and  its  cause,  he  resolved  to  accept  all  bills  pre- 
sented to  him,  at  his  own  risk.  Prudence  and  caution  were  emi- 
nently characteristics  of  the  mind  of  John  Jay  ;  a  wise  and  cool 
discretion  marked  his  general  conduct  in  life,  but  when  the  crisis 
occurred  which  demanded  prompt,  bold,  and  daring  action,  few  men 
were  more  ready  to  step  resolutely  forward  and  assume  the  responsi- 
bility. In  him,  that  caution  which  usually  governed  his  actions,  was 
not  the  result  of  timidity  ;  it  tempered  but  did  not  impair  the  higher 
qualities  of  a  resolute  and  courageous  mind. 

The  result  of  this  bold  and  daring  act  fully  justified  his  best 
expectations.  The  first  cheering  intelligence  he  received,  was  the 
arrival  of  $25,000  from  Dr.  Franklin,  at  Paris.  This,  however,  did 
not  nearly  equal  the  amount  of  his  acceptances.  Still  he  continued 
to  accept  every  bill  that  was  presented,  and  still  he  pressed  his 
importunities  upon  the  Spanish  Government.  At  length  in  Decem- 
ber, 1180,  the  sum  of  $150,000  was  promised  him  ;  but  the  money 
was  not  paid,  and  the  American  envoy  was  not  yet  relieved  from  his 
financial  embarrassments. 

In  April  of  the  following  year  we  find  him  writing  to  Dr.  Frank- 
lin at  Paris,  and  inclosing  him  a  statement  of  the  desperately  hope- 
less condition  of  affairs.  Not  more  than  $35,000  of  the  Spanish 
loan  had  been  paid  in.  He  had  then  outstanding  acceptances  to  the 
amount  of  $231,000,  the  largest  portion  of  which  must  be  paid  in 
two  months.  His  situation,  he  says,  was  a  cruel  one.  It  was  ren- 


JOHN  JAY.  27 

dered  more  annoying  from  the  fact  that  he  had  never  received  a 
dollar  of  salary  from  America,  and  at  one  of  the  proudest  courts  in 
Europe  was  obliged  to  contract  debts  and  live  on  credit.  Still,  how- 
ever, Jay  bore  manfully  up,  and  continued  zealously  and  faithfully  his 
labors  at  the  Spanish  court.  By  dint  of  almost  superhuman  exer- 
tions, he  was  enabled  for  a  long  time  to  meet  his  liabilities,  and  sus- 
tain the  credit  of  the  country.  At  length,  in  the  month  of  March, 
1782,  the  inevitable  crisis  came.  The  Spanish  Government,  after  the 
payment  of  the  $150,000,  agreed  to  guaranty  to  a  banker  the  amount 
necessary  to  liquidate  the  remainder  of  the  bills  accepted  by  Mr. 
Jay  ;  but  the  transaction  was  not  completed,  through  the  want  of 
faith,  it  is  believed,  of  the  Government  itself ;  and  Jay  was  subjected 
to  the  mortification  of  seeing  the  bills  protested,  and  his  own  and  his 
country's  credit  annihilated. 

The  misfortune,  however,  was  soon  retrieved.  During  the  next 
month  Jay  received  from  Franklin  the  following  welcome  letter  : 

"  PASSY,  April  22,  1182. 

"  DEAR  SIR — I  have  undertaken  to  pay  all  the  bills  of  your  accept- 
ance that  have  come  to  my  knowledge,  and  I  hope  in  God  no  more 
will  be  drawn  upon  us  but  when  funds  are  first  provided.  In  that 
case  your  constant  residence  at  Madrid  is  no  longer  necessary.  You 
may  make  a  journey  either  for  health  or  pleasure,  without  retarding 
the  progress  of  a  negotiation  not  yet  begun.  Here  you  are  greatly 
wanted,  for  messengers  begin  to  come  and  go,  and  there  is  much  talk 
of  a  treaty  proposed,  but  I  can  neither  make  nor  agree  to  proposi- 
tions of  peace  without  the  assistance  of  my  colleagues.  Mr.  Adams, 
I  am  afraid,  cannot  just  now  leave  Holland.  Mr.  Jefferson  is  not  in 
Europe,  and  Mr.  Laurens  is  a  prisoner,  though  abroad  upon  parol.  I 
wish,  therefore,  you  would  resolve  upon  the  journey,  and  render  your- 
self here  as  soon  as  possible.  You  would  be  of  infinite  service.  Spain 
has  taken  four  years  to  consider  whether  she  would  treat  with  us  or 
not.  Give  her  forty,  and  let  us  in  the  mean  time  mind  our  own  lusiness. 
I  have'  much  to  communicate  to  you,  but  choose  rather  to  do  it  viva 
voce  than  trust  it  to  letters. 

"  I  am  ever,  my  dear  friend,  yours  most  affectionately, 

"  BENJAMIN  FRANKLIN." 


28  LIVES  OF   THE  CHIEF-JUSTICES. 

The  foregoing  letter  explains  itself.  Mr.  Jay's  mission  to  Spain 
was  about  to  end.  It  had  been  fruitless  in  respect  to  the  proposed 
treaty,  although  Congress,  to  the  astonishment  and  mortification  of 
Jay,  had  some  time  before  passed  a  resolution  instructing  him  to 
yield  the  claim  to  the  navigation  of  the  Mississippi.  And  he  had 
drawn  up  and  presented  a  treaty  to  that  effect.  A  longer  residence 
at  the  Spanish  court  was  therefore  unnecessary.  He  repaired  to 
France  to  act  in  conjunction  with  Franklin,  Adams,  Jefferson,  and 
Laurens,  the  commissioners  appointed  by  the  United  States  in  nego- 
tiating a  peace. 

This  commission  was  extremely  distasteful  to  Mr.  Jay,  not  on 
account  of  the  difficulty  and  responsibility  attending  it,  but  by  reason 
of  what  he  conceived  to  be  the  humiliating  conditions  attached  to 
it.  At  the  instigation  of  the  French  minister,  Mr.  Adams,  who  had 
been  appointed  American  plenipotentiary,  had  been  instructed  in 
negotiating  a  peace,  "  to  make  the  most  candid  and  confidential 
communications  upon  all  subjects  to  the  ministers  of  our  generous 
ally  the  King  of  France  ;  to  undertake  nothing  in  the  negotiations 
for  peace  or  truce  without  their  knowledge  or  concurrence,"  &c. 
Subsequently,  at  the  requisition  of  the  French  minister,  the  addi- 
tional commissioners  were  appointed,  and  the  following  added  to  their 
instructions :  "  And  ultimately  to  govern  yoursdres  by  their  (the 
ministers  of  the  King  of  France)  advice  and  opinion."  It  was  in 
reference  to  these  instructions  that  Mr.  Jay  protested,  in  a  dignified 
letter  to  the  President  of  Congress,  in  which,  while  reluctantly  ac- 
cepting the  commission,  he  entreated  to  be  relieved  of  it  as  soon  as 
practicable.  The  following  are  the  concluding  sentences  of  this 
letter  : 

"  Thus  circumstanced,  and  at  such  a  distance  from  America,  it 
would  not  be  proper  to  decline  this  appointment.  I  will,  therefore, 
do  my  best  endeavors  to  fulfil  the  expectations  of  Congress  on  this 
subject ;  but  as  for  my  own  part,  I  think  it  improbable  that  serious 
negociations  for  peace  will  soon  take  place,  I  must  entreat  Congress 
to  take  an  early  opportunity  of  relieving  me  from  a  station'  where, 
in  character  of  their  minister,  I  must  necessarily  receive  and  obey 
(under  the  name  of  opinions)  the  directions  of  those  on  whom  I 
really  think  no  American  minister  ought  to  be  dependant,  and  to 


JOHN  JAY.  29 

whom,  in  love  for  our  country,  and  zeal  for  her  service,  I  am  sure 
that  my  colleagues  and  myself  are  at  least  equal." 

Jay  accordingly  repaired  to  Paris,  where  he  arrived  on  the  23d 
June,  1782.  Here  he  met  Dr.  Franklin,  and  these  two  mainly  con- 
ducted the  negotiations  on  the  part  of  the  United  States.  Jefferson 
was  detained  in  America ;  Adams  did  not  arrive  'till  the  26th  of 
October,  after  the  preliminary  articles  were  agreed  upon  between  the 
Americans  and  Mr.  Oswald,  the  British  commissioner ;  and  Col. 
Laurens  reached  Paris  the  29th  November,  the  day  before  the  pre- 
liminary articles  were  signed. 

It  is  not  my  design  here  to  sketch  the  progress  of  this  negotiation, 
or  to  discuss  its  merits.  It  has  become  a  part  of  the  history  of  the 
countiy,  and  is  familiar  to  every  one  versed  in  the  diplomatic  events 
of  that  period.  We  are  doing  but  justice  to  Mr.  Jay  in  claiming  for 
him  a  large  share  in  the  successful  results  of  the  negotiation — 
results  upon  which  Jefferson  himself  in  the  warmest  language  con- 
gratulated him  ; — "  The  terms  obtained  for  us,"  he  remarks  in  the 
confidence  of  a  friendly  letter,  "  are  indeed  great,  and  are  so  deemed 
by  your  countrymen,  a  few  ill-designing  debtors  excepted."  Hamil- 
ton, also,  highly  complimented  him.  "  The  peace,"  he  says,  "  which 
exceeds  in  the  goodness  of  its  terms  the  expectations  of  the  most 
sanguine,  does  the  highest  honor  to  those  who  made  it."  These 
terms,  however,  and  this  successful  negotiation,  were  not  achieved 
without  the  most  painful  anxiety  and  difficult  labor.  England  was 
of  course  prepared  to  grant  but  few  concessions  to  her  revolted 
colonies,  and  France,  "  our  generous  ally,"  had  her  own  designs  to 
subserve,  and  was  as  dangerous  to  America  in  diplomacy  as  she 
had  been  formidable  to  England  in  war.  At  the  outset,  too,  Mr. 
Jay  had  the  misfortune  to  differ  with  his  then  sole  colleague,  Dr. 
Franklin.  The  British  commissioner,  Mr.  Oswald,  had  beeu  autho- 
rized to  treat  with  any  commissioner  or  commissioners  appointed  by 
the  thirteen  colonies  or  plantations  in  North  America.  Jay  regarded 
the  independence  of  the  colonies  as  already  a  fact  not  to  be  contro- 
verted even  by  implication  ;  and  he  refused  to  treat  with  the  British 
commissioner  except  upon  terms  of  equality.  The  French  minister, 
Vergennes,  urged  a  compliance  ;  Franklin  himself  thought  "  it  would 
do ;"  but  nothing  could  shake  the  firmness  and  sense  of  propriety 


30  LIVES  OF    THE  CHIEF-JUSTICES. 

of  Mr.  Jay ;  he  assured  the  British  envoy  that  he  would  under  no 
circumstances  take  part  in  any  negotiation  in  which  the  United 
States  were  not  treated  as  an  independent  nation  ;  and  at  Mr.  Os- 
wald's request  he  drew  the  draft  of  such  a  commission  as  would  be 
satisfactory.  A  courier  was  dispatched  with  this  to  London,  and 
finally,  on  the  27th  September,  returned  with  a  commission  to  Mr. 
Oswald,  authorizing  him  to  treat  with  the  commissioners  of  THE 
UNITED  STATES  OF  AMERICA. 

The  draft  of  the  preliminary  articles  is  in  the  handwriting  of  Mr. 
Jay.  Mr.  Adams  subsequently  arriving  in  Paris,  concurred  in  sen- 
timent with  him  on  all  points,  and  assisted  in  completing  the  nego- 
tiations ; — and  finally,  on  the  30th  November,  1182,  they  were 
signed  by  the  four  American  commissioners,  and  by  Mr.  Oswald  on 
behalf  of  the  British  Government.  The  success  of  the  negotiation 
was  handsomely  complimented  by  the  Spanish  ambassador,  the  Count 
Aranda,  whom  Jay  characterizes  as  the  ablest  Spaniard  he  had 
met.  Meeting  Mr.  Jay  the  next  day  after  the  preliminaries  were 
signed,  he  tapped  him  familiarly  on  the  shoulder  and  remarked, 
"  Eh  bien,  mon  amie,  vous  avez  tres  lien  fait." 

While  these  general  results,  however,  were  highly  flattering,  and 
greatly  added  to  the  credit  of  the  ministers  who  had  negotiated  the 
treaty,  it  is  not  to  be  denied  that  there  was  much  dissatisfaction 
manifested,  and  that  too  in  the  highest  quarters,  in  regard  to  the 
manner  in  which  the  business  had  been  conducted.  The  conduct  of 
the  envoys  in  violating  their  instructions,  as  was  alleged,  by  pro- 
ceeding in  a  separate  and  secret  manner  with  respect  to  our  ally, 
France,  and  confidentially  with  respect  to  the  British  commissioner, 
was  severely  criticised  in  Congress,  and  particularly  by  Mr.  Mercer, 
a  member  from  Virginia,  who  in  a  very  warm  speech  denounced 
their  conduct  in  meanly  stooping,  as  he  remarked,  "  to  lick  the  dust 
from  the  feet  of  a  nation  whose  hands  were  still  dyed  with  the  blood 
of  their  fellow-citizens."*  Other  members,  though  without  using  the 
same  severity  of  language,  concurred  in  these  sentiments.  The 
separate  article  in  the  treaty  with  Great  Britain  was  peculiarly  ob- 
noxious to  the  charge  of  its  being  made  in  violation  of  our  faith  with 
France,  and  it  must  be  confessed  that  the  complaints  of  the  French 
*  Madison  Papers,  Vol.  I.  p.  390. 


JOHN   JAY.  31 

minister  of  the  manner  in  which  the  American  commissioners  had 
proceeded  in  that  respect,  without  the  advice  and  concurrence  of  the 
Government  of  France,  were  not  entirely  without  foundation. 

Indeed,  we  find  Mr.  Hamilton  himself,  in  this  same  debate  in 
Congress,  while  advising  "  coolness  and  circumspection,"  yet  "  disap- 
proving highly  of  the  conduct  of  our  ministers  in  not  showing  the 
preliminary  articles  to  our  ally  before  they  signed  them,  and  still 
more  so  of  their  agreeing  to  the  separate  article."  Mr.  Hamilton 
also  observed  "  particularly  with  respect  to  Mr.  Jay,  that  although 
he  was  a  man  of  profound  sagacity  and  pure  integrity,  yet  he  was  of 
a  suspicious  temper,  aud  that  this  trait  might  explain  the  extraordi- 
nary jealousies  which  he  professed."* 

Jay's  defence  of  his  course  of  action  in  departing  from  his  instruc- 
tions was,  in  substance,  that  they  had  been  given  for  the  benefit  of 
America,  not  of  France,  and  that  America  alone  had  a  right  to 
complain.  "  Moreover,"  he  remarks  in  a  letter  to  the  Secretary  of 
Foreign  Affairs,  "  as  the  French  Minister  did  not  consult  us  about 
his  articles,  nor  make  us  any  communication  about  them,  our  giving 
him  as  little  trouble  about  ours  did  not  violate  any  principle  of 
reciprocity."  John  Rutledge,  in  the  debate  in  Congress  on  this 
subject,  placed  the  defence  of  the  Ministers  on  higher  and  bolder 
grounds ;  they  had  done  right,  he  maintained,  in  violating  their 
instructions,  because  "instructions  ought  to  oe  disregarded  when  the 
public  good  requires  it""\ 

The  definitive  treaty  of  peace,  though  the  preliminary  articles 
had  been  signed  in  the  autumn  of  1782,  was  not  executed  until  the 

*  Madison  Papers,  Vol.  I.  pp.  395,  396.  This  language  of  Hamilton  is  the 
more  remarkable,  inasmuch,  as,  by  profession,  at  least,  he  afterwards  so  warmly 
approved  the  conduct  of  Mr.  Jay.  I  have  already  quoted  his  complimentary 
language  in  regard  to  the  treaty.  In  a  letter  to  Jay,  a  few  months  subsequent,  he 
says :  "  I  have  been  witness  with  pleasure  to  every  event  which  has  had  a  ten- 
dency to  advance  you  in  the  esteem  of  your  country  ;  and  I  may  assure  you,  with 
sincerity,  that  it  is  as  high  as  you  could  possibly  wish.  All  have  united  in  the 
warmest  approbation  of  your  conduct.  I  cannot  forbear  telling  you  this,  because 
my  situation  has  given  me  access  to  the  truth,  and  I  gratify  my  friendship  for 
yon  in  communicating  what  cannot  fail  to  gratify  your  sensibility." 

The  debates  in  Congress,  it  will  be  recollected,  were  not  public. 

t  See  subsequent  sketch.    Life  of  Rutledge. 


32  LIVES  OF    THE  CHIEF-JUSTICES. 

third  of  September,  1783.  Mr.  Jay  thereupon  went  to  England, 
where  he  remained  a  few  months,  and  then  returned  to  Paris. 
The  Court  of  Spain  had  invited  him  to  visit  that  country  once  more 
and  resume  negotiations.  This  was  before  the  conclusion  of  the 
treaty,  and  Mr.  Jay  had  determined  to  accept.  But  it  seems  the 
state  of  affairs  in  Paris,  and  ill-health,  induced  him  to  abandon  this 
design.  After  the  signing  of  the  treaty  he  determined  to  resign  his 
commission,  and  return  to  his  native  country.  His  name  having 
been  mentioned  as  a  fit  person  to  be  appointed  Minister  at  the  Court 
of  London,  he  expressly  declined  such  an  appointment  in  a  letter  to 
the  Secretary  for  foreign  affairs,  refusing  to  be  a  competitor  with 
Mr.  Adams  for  the  place  in  question.  His  motives  in  resigning  his 
commission  are  best  expressed  in  his  own  words,  as  found  in  a  letter 
written  to  Gouverneur  Morris  from  Paris,  on  the  10th  February, 
1784. 

"You  suppose  that  ill-health  induces  me  to  resign.  You  are 
mistaken.  It  seldom  happens  that  any  measure  is  prompted  by  one 
single  motive,  though  one  among  others  may  sometimes  have  a 
decisive  weight  and  influence.  Many  motives  induce  me  to  resign ; 
but  of  those  many  there  is  one  which  predominates,  and  that  is : — 
When  I  embarked  in  the  public  service,  I  said  very  sincerely,  that  I 
quitted  private  life  with  regret,  and  should  be  happy  to  return  to  it 
when  the  object  which  called  me  from  it,  should  be  attained.  You 
know  what  those  objects  were,  and  that  on  the  peace  they  ceased  to 
operate.  To  be  consistent,  therefore,  I  must  retire.  The  motive  is 
irresistible.  Superadded  to  this,  are  the  education  of  my  son,  the 
attention  I  owe  to  the  unfortunate  part  of  my  family,  and  the  hap- 
piness I  expect  from  rejoining  my  friends.  Pecuniary  considerations 
ever  held  a  secondary  place  in  my  estimation.  I  know  how  to  live 
within  the  limits  of  any  income,  however  narrow  ;  and  my  pride  is 
not  of  a  nature  to  be  hurt  by  returning  to  the  business  which  I  for- 
merly followed.  But  professions  of  this  sort  are  common,  and  facts 
only  can  give  unequivocal  evidence  of  their  sincerity." 

Such  were  the  views  of  Mr.  Jay  in  returning  to  private  life. 
Expressed  in  the  unreserved  confidence  of  an  intimate  friendship, 
their  sincerity  cannot  be  questioned.  They  were  not,  as  is  so  often 
the  case,  professions  merely,  intended  to  catch  the  public  ear  and 


JOHN  JAY.  33 

excite  the  popular  applause  ;  but  they  were  actual  sentiments,  real, 
living  rules  of  action.  He  had  quitted  private  life  with  regret,  he  was 
about  to  return  to  it  with  pleasure,  for  the  objects  in  view  had  been 
attained.  The  same  elevated  motive  which  prompted  Washington  to 
gird  oa  his  sword  in  the  revolution,  and  to  lay  it  aside  when  that  rev- 
olution had  been  accomplished,  had  also  prompted  the  actions  of 
Jay.  Ten  years  before,  he  had  left  the  profession  in  which  he  had 
been  educated  ;  during  that  tune  he  had  filled  the  highest  offices  in 
the  gift  of  his  countrymen — Chief-Justice,  President  of  Congress, 
Plenipotentiary  at  foreign  courts — and  now  with  the  calm  hope  of  a 
lofty  purpose,  and  the  serenity  of  a  true  philosophy,  he  expressed  his 
determination  to  decline  further  public  honors,  and  resume  the  labors 
of  an  arduous  profession  as  the  means  of  obtaining  a  livelihood  for 
himself  and  family.  His  pride,  he  declares,  will  not  be  hurt  at  this, 
and  he  had  learned  to  live  "  within  the  limits  of  any  income."  Pas- 
sages like  these  beautifully  illustrate  the  simplicity  and  purity  of  Jay's 
character.  They  impress  upon  it  the  stamp  of  a  high  moral  worth, 
nay,  of  a  true  GREATNESS,  which  may  suggest  a  comparison  with  the 
best  examples  of"  Roman  virtue. 

On  the  24th  day  of  July,  1784,  Mr.  Jay  arrived  in  New  York. 
He  was  received  with  the  most  distinguished  marks  of  respect  and 
public  confidence.  The  public  authorities  presented  to  him  an  ad- 
dress accompanied  by  the  freedom  of  the  city  in  a  gold  box.  His  old 
friends  hastened  to  congratulate  him  upon  his  safe  arrival,  and  on 
every  side  he  received  those  marks  of  attention  which  are  due  to  emi- 
nent worth  and  distinguished  and  successful  public  services. 

It  had  been  his  intention,  on  his  return  from  Europe,  to  resume 
the  practice  of  the  law.  Since  his  entrance  in  public  life,  ten  years 
before,  he  had  been  almost  entirely  withdrawn  from  the  active  duties 
of  his  profession,  yet  he  had  never  ceased  to  give  his  attention,  when 
not  diverted  by  public  employment,  to  matter  connected  with  his 
former  practice  at  the  bar.  Even  after  his-  return  from  Europe  his 
time  was  frequently  occupied  in  applications  of  this  kind.  In  a  letter 
to  Chancellor  Livingston,  after  arriving  at  New  York,  he  mentions 
this  as  a  reason  why  he  is  prevented  from  making  him  a  visit.  He 
says  he  ha^  so  many  applications  about  papers  and  business  respecting 
cause?  In  which  he  was  formerly  concerned,  that  he  is  obliged  to 
3 


34  LIVES  OF   THE   CHIEF-JUSTICES. 

pass  a  fortnight  or  three  weeks  in  New  York.  In  the  same  letter 
he  alludes  to  his  intention  of  again  returning  to  the  practice  of  his 
profession. 

This  intention,  however,  was  frustrated.  Congress,  on  learning 
Mr.  Jay's  design  of  returning  to  America,  tendered  him  the  appoint- 
ment of  Secretary  for  Foreign  Affairs,  a  place  formerly  filled  by 
Chancellor  Livingston,  but  which  by  the  resignation  of  the  Chan- 
cellor had  been  vacant  during  the  past  year.  Mr.  Jay  hesitated  to 
accept  this  appointment.  The  Legislature  of  his  native  State,  in 
the  mean  time,  appointed  him  again  a  delegate  in  Congress.  The 
session  was  held  at  Trenton.  On  the  23d  of  December  Congress 
adjourned  to  New  York,  which  it  was  determined  should  be  its  future 
seat ;  and  having,  in  the  mean  time,  granted  permission  to  Mr.  Jay 
to  select  the  clerks  of  his  department,  he  accepted  the  office  of  Secre- 
tary for  Foreign  Affairs,  and  entered  upon  his  duties  early  in  the  fol- 
lowing year. 

Mr.  Jay  remained  in  the  discharge  of  the  duties  of  this  responsi- 
ble position  until  after  the  meeting  of  the  Convention  which  adopted 
the  Federal  Constitution.  Of  that  body  he  was  not  a  member,  it 
being  impossible  for  him  at  the  same  time  to  attend  its  deliberations, 
and  to  discharge  the  duties  of  his  present  place.  It  is  not  necessary 
here  to  detail  his  official  services  in  the  capacity  of  Foreign  Secre- 
tary to  the  confederacy,  or  to  dwell  upon  this  portion  of  his  public 
career.  It  may,  however,  be  remarked,  that  he  resumed  the  nego- 
tiations for  a  treaty  with  Spain,  through  the  Spanish  ambassador, 
and  prescribed  to  that  functionary  the  forms  and  etiquette  to  be 
observed  in  his  introduction  to  Congress.  The  negotiations  resulted 
in  nothing.  Mr.  Jay,  in  a  speech  to  Congress,  recommended  as  the 
basis  of  a  treaty,  the  abandonment,  for  a  specific  number  of  years,  of 
the  navigation  of  the  Mississippi  below  the  Southern  boundary.  The 
recommendation  gave  great,  and  perhaps,  deserved  umbrage  to  the 
Southern  members  of  Congress  ;  but  the  northern  members  sup- 
ported the  Secretary,  and  voted  down  a  resolution  to  terminate  his 
powers  of  negotiation. 

During  this  period,  Jay  was  again  solicited  to  oecome  a  candidate 
for  the  office  of  Governor  of  New  York,  there  having  been  some 
discontent  expressed  at  the  course  and  proceedings  of  Governor 


JOHN  JAY.  35 

Clinton.  He  however  again  refused,  mainly  upon  the  ground  of  the 
obligations  he  was  under  and  the  services  he  owed  Congress,  and 
his  unwillingness  to  exchange  his  present  for  a  more  honorable  and 
lucrative  position,  without  the  consent  and  sanction  of  that  body. 
In  a  letter  addressed  to  his  old  friend,  General  Schuyler,  he  strongly 
enforces  this  view,  adding  that  if  real  disgust  and  discontent  had 
spread  through  the  country,  and  a  change  had  became  not  only 
proper  •  but  necessary,  he  would  have  felt  bound  to  make  his  personal 
feelings  yield  to  public  considerations. 

The  necessity  of  a  change  in  the  articles  of  confederation,  and  the 
estabh'shment  of  a  general  government,  was  very  early  felt.  Almost 
all  the  public  men  of  America  concurred  in  this  opinion.  It  is 
scarcely  necessary  to  add  that  Mr.  Jay  was  among  the  very  first  to 
express  his  sentiments  upon  the  propriety  and  necessity  of  such  a 
change.  It  is  well  known,  too,  that  his  opinions,  from  the  start, 
were  strongly  federal.  With  Hamilton  and  Adams  he  inclined 
decidedly  to  centralization,  and  favored  the  establishment  of  an 
energetic  national  government.  The  federal  system,  as  actually 
adopted,  and  especially  as  it  was  subsequently  construed  by  Jefferson 
and  Madison,  seemed  never  to  have  harmonized  entirely  with  his 
views,  or  to  have  met  his  ideas  of  a  perfect  government,  though  we 
find  him  warmly  defending  the  new  Constitution  as  a  plan  of  gov- 
ernment infinitely  preferable,  in  all  respects,  to  the  old  Confedera- 
tion. It  is  not  my  purpose,  however,  to  point  out  what  might  be 
regarded  as  the  errors  of  Mr.  Jay's  theory,  or  to  criticise  his  specu- 
lative opinions  on  government.  Those  opinions  were  shared  by  some 
of  the  wisest,  ablest,  and  may  we  not  add  best,  of  the  public  men 
of  that  day.  That  they  were  erroneous  is  evident  from  the  work- 
ings of  the  admirable  system  which  was  subsequently  adopted  as  a 
sort  of  compromise  between  the  extreme  views  of  the  ultra  Federal- 
ists on  the  one  hand,  and  on  the  other  the  doctrine  of  absolute 
state  sovereignty,  and  the  more  radical  and  democratic  element  of 
popular  government.  It  is,  nevertheless,  but  doing  justice  to  the 
most  high-toned  Federalist  of  that  period  to  say,  that  however  erro- 
neous may  have  been  his  views,  and  widely  as  we  at  this  day  may 
differ  from  these  doctrines  of  consolidation,  and  a  strong  central  gov- 
ernment, yet  that  these  very  doctrines,  as  society  then  stood,  were,  a 


36  LIVES  OF  THE  CHIEF-JUSTICES. 

progressive  step  in  the  science  of  government,  and  even  a  struggle 
against  a  worse  and  more  arbitrary  system.  At  the  present  day,  we 
are  too  apt  to  lose  sight  of  the  fact,  that  the  opinions,  customs,  and 
habits  of  the  monarchy  had  not  yet  lost  their  hold  upon  the  people. 
Washington  himself,  in  a  letter  to  Jay,  before  the  meeting  of  the 
Convention,  uses  the  following  language  :  "I  am  told  that  even 
respectable  characters  speak  of  a  monarchical  form  of  government 
without  horror.  From  thinking  proceeds  speaking  ;  thence  to  action 
is  often  but  a  single  step.  But  how  irrevocable  and  tremendous  ! 
What  a  triumph  for  the  advocates  of  despotism,  to  find  that  we  are 
incapable  of  governing  ourselves,  and  that  systems  founded  on  the 
basis  of  equal  liberty  are  merely  ideal  and  fallacious  !  Would  to 
God  that-  wise  measures  may  be  taken  in  time  to  avert  the  conse- 
quences we  have  but  too  much  reason  to  apprehend."  These  appre- 
hensions of  Washington  were  shared  by  Jay,  and,  it  is  believed,  by 
most  of  the  prominent  Federalists.  They  honestly  and  zealously  en- 
deavored to  avert  the  threatened  evil.  The  result  was,  that  even  the 
plan  of  Hamilton,  of  an  executive  and  Senate  for  life,  was  repudiated, 
and  the  present  Federal  Constitution  adopted. 

Jay  was  neither  a  monarchist  nor  in  favor  of  an  aristocratic  gov- 
ernment. There  is  no  evidence  that  his  sympathies  and  inclinations 
were  not  from  the  start  in  favor  of  pure  republican,  though  not 
strictly  democratic  institutions.  It  is  clear,  however,  that  he  never 
gave  in  his  adhesion  to  the  Jeffersonian  construction  of  the  Consti- 
tution, or  thoroughly  comprehended  what  we  have  been  accustomed 
to  regard  as  the  true  theory  of  democratic  progress.  Thus  he  says 
in  a  letter  to  General  Washington  :  "  The  mass  of  men  are  neither 
wise  nor  good,  and  the  virtue,  like  the  other  resources  of  a  country, 
can  only  be  drawn  to  a  point  and  exerted  by  strong  circumstances, 
ally  managed,  or  a  strong  government,  ally  administered."  So  too 
in  regard  to  the  great  principle  of  free  suffrage,  he  hesitated  to  trust 
the  masses  ;  it  was  a  favorite  maxim  with  him,  says  his  son,  in  writing 
his  memoirs,  that  those  who  own  the  country  (i.  e.  the  land-holders,) 
should  govern  it. 

The  views  of  Mr.  Jay  upon  the  great  question  of  the  formation  of 
a  national  Constitution,  were  freely  expressed  in  letters  to  his  friends, 
and  show  very  clearly  the  force  of  his  convictions  in  favor  of  a  con- 


JOHN  JAY.  37 

solidated  and  energetic  central  government.  So  early  as  the  spring 
of  1785,  he  writes  to  a  friend  as  follows  : 

"  It  is  ray  first  wish  to  see  the  United  States  assume  and  merit 
the  character  of  ONE  GREAT  NATION,  whose  territory  is  divided  into 
different  states  merely  for  more  convenient  government,  and  the 
more  easy  and  prompt  administration  of  justice  ;  just  as  our  several 
states  are  divided  into  counties  and  townships  for  the  like  purposes." 

The  same  sentiments  are  repeated  a  year  after  in  a  letter  to  John 
Adams  at  London,  in  which  he  expresses  as  one  of  the  first  wishes 
of  his  heart,  the  desire  "  to  see  the  people  of  America  become  one 
nation  in  every  respect ;  for,  (he  continues,)  as  to  the  separate 
legislatures,  I  would  have  them  considered,  with  relation  to  the  con- 
federacy, in  the  same  light  in  which  counties  stand  to  the  State  of 
which  they  are  parts,  viz.,  merely  as  districts  to  facilitate  the  pur- 
poses of  domestic  order  and  good  government." 

And  in  a  long  letter  to  General  Washington,  just  before  the  Con- 
vention, he  intimates  the  same  thing  :  "  What  powers  should  be 
granted  to  the  Government  so  constituted,"  he  remarks,  "  is  a  ques- 
tion which  deserves  much  thought.  I  think  the  more  the  letter  ;  the 
states  retaining  only  so  much  as  may  be  necessary  for  domestic  pur- 
poses, and  all  their  principal  officers,  civil  and  military,  being  com- 
missioned and  removable  by  the  national  Government."  In  the 
same  letter  Mr.  Jay,  though  expressing  himself  against  a  monarchy, 
goes  so  far  as  to  suggest  a  Congress  divided  into  an  upper  and  lower 
house,  the  former  appointed  for  life,  and  the  latter  annually  ;  and  a 
Governor-General,  limited  in  prerogative  and  duration.  At  the  same 
time,  however,  he  never  for  a  moment  loses  sight  of  the  true  basis 
of  popular  rights,  and  the  cardinal  doctrine  of  republican  govern- 
ment ;  for  his  letter  closes  with  the  declaration,  that  no  alteration 
in  the  government  should  be  made  "  unless  deducible  from  the  only 
source  of  just  authority — THE  PEOPLE." 

In  like  manner  the  general  principle  of  the  Federal  union,  as  sub- 
sequently adopted,  was  already  a  familiar  idea  to  the  mind  of  Jay, 
for  in  a  letter  to  Jefferson,  at  Paris,  alluding  to  the  weakness  of  the 
confederacy,  and  the  necessity  for  a  better  and  a  stronger  union,  he 
thus  sketches  the  main  features  of  what  he  conceives  to  be  the  true 
plan  which  ought  to  be  adopted  :  "  To  vest  legislative,  judicial,  and 


38  LIVES  OF  THE  CHIEF-JUSTICES. 

executive  powers  in  one  and  the  same  body  of  men,  and  that  too  in 
a  body  daily  changing  its  members,  can  never  be  wise.  In  my 
opinion  those  three  great  departments  of  sovereignty  should  be  for- 
ever separated,  and  so  distributed  as  to  serve  as  checks  on  each 
other." 

These  extracts  will  suffice  to  show  Mr.  Jay's  opinions  upon  the 
subject  of  the  proposed  Federal  Constitution.     It  has  been  before 
remarked  that  he  was   not  a  member    of  the   Convention  which 
framed  it,  being  prevented  from  accepting  a  nomination  by  the  press- 
ing nature  of  the  duties  of  the  office  he  then  held  and  the  necessity 
of  his  attending  the   sittings  of  Congress.     But  no  sooner  was  the 
Constitution  agreed  upon  and  submitted  to  the  States  for  ratifica- 
tion, than  Jay  stepped  forward,  its  zealous  and  earnest  advocate. 
Public  opinion  was  divided  in  regard  to  it.     An  active  opposition 
was  at  once  manifested  :  or  if  not  a  direct  opposition,  an  earnest  and 
determined  effort  to  secure  a  larger  concession  to  popular  rights  and 
state  sovereignty.     Perhaps  in  no  State  in  the  union  was  the  oppo- 
sition more  strenuous  and  determined  than  in  New  York.     The  city, 
indeed,  not  then  as  now  the  metropolis  of  the  country,  but  then  as 
now,  the  loyal  and  devoted  friend  of  the  American  union,  was  deci- 
dedly favorable  to  the  proposed  plan.     But  a  strong  feeling  existed 
in  the  country  in  favor  of  a  larger  concession  of  popular  rights  and 
a  less   extensive   delegation  of  power  to  the   General  Government. 
The  people  were  jealous  of  their  liberties,  and  hesitated  to  ratify  an 
instrument  which  called  for  a  surrender  of  some  of  the  most  impor- 
tant powers  of  State  sovereignty.     Some  were  unconditionally  and 
unalterably   opposed  to  the  adoption  of  the  proposed  instrument ; 
others  would  adopt  it  conditionally,  and  others  still,  merely  desired 
its  amendment  in  a  variety  of  particulars.     The  ranks  of  the  anti- 
Federalists    comprised  all  these  different  shades  of  opinions,  and  cer- 
tainly the  power  of  numbers  seemed  to  be  clearly  with  them.     But 
the  weight  of  the  intellect  of  the  State  was  on  the  side  of  the  Fede- 
ralists, and  prominent  among  them  stood  those  distinguished  advo- 
cates and  champions  of  the  proposed  Constitution,  Livingston,  Ham- 
ilton, and  John  Jay. 

The  first  decided  impression  made  by  the   Federalists  upon  the 
people  was  through  the  public  press.    Jay  united  with  Hamilton 


JOHN  JAY.  39 

and  Madison  in  writing  and  publishing  that  celebrated  series  of 
papers,  which  has  since  been  known  by  the  name  of  the  FEDERALIST, 
the  first  number  of  which  appeared  in  the  mouth  following  the  ad- 
journment of  the  Federal  Convention.  Three  such  minds  have  been 
rarely  combined  in  the  elucidation  of  any  political  system,  or  the 
discussion  of  any  question,  whether  practical  or  theoretical,  of  poli- 
tics or  government.  It  is  not  surprising  then  that  this  publication 
should  have  impressed  itself  deeply  upon  the  public  mind,  and  exer- 
cised a  wide-spread  and  powerful  influence  ;  nor  that  the  Federalist 
should  have  been  ever  since  regarded  by  the  American  statesman 
and  jurist*  as  the  most  valuable  commentary  ever  written  upon  the 
American  Constitution.  In  this  production  Jay  does  not  lay  claim 
to  an  equal  share  with  his  illustrious  coadjutors.  He  contributed, 
it  is  believed,  but  five  papers,  four  of  which  immediately  followed  the 
opening  number  of  the  series.  The  remainder  is  the  work  of  Hamil- 
ton and  Madison,  f 

The  Federalist  was  followed  by  a  pamphlet,  written  by  Mr.  Jay, 
but  published  anonymously,  addressed  to  the  people  of  New  York. 
This  pamphlet  discussed  with  great  candor  as  well  as  ability,  the 
three  following  questions,  with  reference  to  the  proposed  Constitu- 
tion. 

1.  Is  it  probable  a  better  plan  can  be  obtained  ? 

2.  If  attainable,  is  it  likely  to  be  in  season  ? 

3.  What  would  be  our  condition,  if,  rejecting  this,  all  efforts  to  ob- 
tain a  better  should  prove  fruitless  ? 

*  Chancellor  Kent  speaks  of  the  Federalist  in  the  following  terms  :  "No  Con- 
stitution of  government  ever  received  a  more  masterly  and  successful  vindication. 
I  know  not  indeed  of  any  work  on  the  principles  of  free  government  that  is  to  be 
compared  in  instruction  and  intrinsic  value  to  this  small  and  unpretending  volume 
of  the  Federalist ;  not  even  if  we  resort  to  Aristotle,  Cicero,  Machiavel,  Montes- 
quieu, Milton,  Locke,  or  Burke.  It  is  equally  admirable  in  the  depth  of  its  wis- 
dom, the  comprehensiveness  of  its  views,  the  sagacity  of  its  reflections,  and  the 
fearlessness,  patrotism,  candor,  simplicity  and  elegance  with  which  its  truths  are 
uttered  and  recommended." — 1  Kent.  Com.,  p.  241,  note. 

t  Mr.  Jay  would  doubtless  have  been  a  larger  contributor  to  the  Federalist,  but 
for  the  occurrence  of  a  serious  accident,  which  interrupted  his  labors.  While 
endeavoring  with  other  citizens  of  New  York,  under  the  lead  of  Col.  Hamilton, 
to  quell  a  riot,  he  was  struck  with  a  stone  on  the  temple,  and  taken  up  for  dead. 
He  recovered  only  in  time  to  write  the  sixty-fourth  number  of  the  series. 


40  LIVES  OF    THE  CHIEF  JUSTICES. 

In  the  argument  of  these  questions,  Jay  starts  with  the  admission 
that  the  proposed  Constitution  is  imperfect.  It  is  not  such  as  he 
and  the  friends  of  a  strong  federal  government  desired.  Their  views 
had  been  clearly  expressed  and  eloquently  advocated  by  Col.  Ham- 
ilton upon  the  floor  of  the  Convention,  but  these  views  had  not  been 
adopted  by  that  body.  Unlike  the  opponents  of  the  proposed  Con- 
stitution, however,  Mr.  Jay  avows  himself  prepared  to  submit,  and 
to  yield  his  cordial  and  unqualified  support  to  the  projected  plan  of 
union.  The  first  two  questions  as  above  stated  are  accordingly 
answered  in  the  negative.  The  third  is  discussed  with  an  earnest- 
ness, a  candor,  and  a  power  of  argument,  which  leave  no  room  to 
doubt  the  author's  thorough  conviction  of  the  truth  of  the  proposi- 
tions he  advocates,  and  his  entire  confidence  in  the  ultimate  success 
of  the  Constitution.  Washington  took  occasion  to  compliment  him 
upon  the  "  good  sense,  forcible  observation,  temper,  and  moderation 
with  which  the  pamphlet  is  written  ;"  and  Franklin  deemed  it  ad- 
visable that  Jay  should  give  it  additional  weight  by  attaching  to  it 
his  name  ;  but  the  habitual  modesty  of  the  author  impelled  him  to 
decline  this  suggestion,  and  prompted  the  characteristic  reply :  "  If 
the  reasoning  hi  the  pamphlet  you  allude  to  is  just,  it  will  have  its 
effect  on  candid  and  discerning  minds  ; — if  weak  and  inconclusive,  my 
name  cannot  render  it  otherwise." 

The  assent  of  New  York  to  the  new  Constitution  was  felt  by  the 
Federalists  to  be  an  indispensable  requisite  to  its  success.  The  great 
battle  of  the  Constitution,  as  has  been  well  observed,  was  fought  in 
New  York.  A  Convention  of  delegates  of  the  people  was  called  by 
the  Legislature.  The  strongest  men  in  the  State  were  proposed  as 
candidates  on  either  side.  The  election  was  held  in  April,  1188. 
In  the  city  of  New  York  the  Federalists  carried  it  their  own  way. 
Jay  was  put  in  nomination  for  that  city  and  elected.*  He  had  for  his 
colleagues  the  Chief-Justice,  Bichard  Morris,  Chancellor  Livingston, 
Alexander  Hamilton,  James  Duane,  Richard  Harrison,  Judge  John 
Sloss  Hobart,  Isaac  Roosevelt  and  Nicholas  Low — an  array  of  worth, 
character,  and  talent,  that  has  never  been  surpassed,  if  equalled,  by 
any  delegation  ever  elected  to  represent  that  city. 

In  the  country,  however,  the  elections  were  strongly  against  the 
*  Out  of  a  poll  list  of  nearly  3000,  he  received  all  but  about  100  votes. 


JOHN  JAY.  41 

Federalists.  Most  of  the  members  returned  were  opposed  to  the 
ratification  of  the  Constitution,  except  upon  condition,  or  with  some 
important  amendments.  Nor  where  the  anti-Federalists,  as  they 
were  called,  deficient  either  in  influence,  activity,  or  ability.  Pro- 
minent among  the  list  stood  the  formidable  name  of  that  able  and 
experienced  leader,  Governor  Clinton,  who  was  elected  President  of 
the  Convention.  Mr.  John  Lansing  of  Albany,  afterwards  for  many 
years  >  Chancellor,  a  gentleman  of  sound  judgment  and  cultivated  in- 
tellect, as  well  as  a  most  adroit  and  active  parliamentarian,*  Mr. 
Melaucthon  Smith  of  Dutchess,  one  of  the  most  fluent  and  ready 
debaters,  perhaps  under  all  circumstances  the  best,  next  to  Hamil- 
ton, in  the  house,  Mr.  Treadwell,  Mr.  Williams,  and  Mr.  G.  Liv- 
ingston, may  be  mentioned  as  among  the  most  prominent  of  the 
opposition. 

On  the  first  day  of  the  session  Chancellor  Livingston  opened  the 
deliberations  in  an  elaborate  speech,  at  the  close  of  which  he  moved 
the  consideration  of  the  Constitution  by  sections,  which  was  adopted. 
The  motion  was  a  wise  and  discreet  one,  had  there  been,  as  was 
alleged,  a  desire  on  the  part  of  the  majority  to  defeat  the  ratifica- 
tion entirely.  It  seems,  however,  from  the  cause  of  the  debates, 
that  this  was  not  seriously  intended,  and  that  the  design  was  merely 
to  secure  the  adoption  of  some  very  important  amendments,  together 
with  a  declaration,  or  bill  of  rights,  to  be  attached  to  the  Constitu- 
tion, a  matter  which  had  been  singularly  enough  omitted.f  Of  the 
more  important  amendments  desired  were  those  in  regard  to  taxa- 

*  Mr.  Lansing  had  been  a  member  of  the  Convention  which  framed  the  Con- 
stitution. He  retired  with  his  colleague,  Mr.  Yates,  before  the  Constitution  was 
agreed  upon,  leaving  Hamilton  the  sole  representative  from  New  York. 

t  This  had  been  Jefferson's  main  objection  to  the  Constitution.  In  a  letter  to 
Washington,  Mr.  Jefferson,  alluding  to  the  charge  (which  he  attributed  to  Hamil- 
ton) that  he  (Jefferson)  had  written  letters  from  Europe  to  his  friends  to  oppose 
the  Constitution,  says :  "  The  charge  is  most  false.  I  approve  as  much  of  the 
Constitution  as  most  persons,  and  more  of  it  was  disapproved  by  my  accuser  than 
by  me,  and  of  its  parts  most  vitally  republican.  My  objection  to  the  Constitution 
was  the  want  of  a  bill  of  rights— Col.  Hamilton's  that  it  wanted  a  king  and  House 
of  Lords.  The  sense  of  America  has  approved  my  objection,  and  added  the  bill 
of  rights,  and  not  the  king  and  lords." 

Mr.  Jefferson  was  in  favor  also  of  making  the  presidential  term  six  years,  and 
not  renewable. 


42  LIVES  OF    THE  CHIEF-JUSTICES. 

tion,  one  for  increasing  the  number  of  the  representatives,  and  one 
moved  by  Mr.  G.  Livingston,  and  sustained  with  great  ability  and 
force  of  argument  by  Messrs.  Lansing  and  Smith,  to  authorize  the 
recall  of  a  Senator  by  the  State  Legislature,  and  prohibiting  his 
re-election  for  the  six  years  immediately  succeeding  the  expiration 
of  his  term.  All  these  amendments,  as  well  as  the  important  one 
embraced  in  the  bill  of  rights  subsequently  moved  by  Mr.  Lansing, 
and  which  was  substantially  adopted  and  ratified  by  the  requisite 
majority  of  the  States,  and  thus  became  a  part  of  the  Constitution, 
were  prompted  not  by  hostility  to  a  plan  of  union  among  the  States, 
or  even  to  an  energetic  federal  government,  but  by  a  well-grounded 
jealousy  of  the  encroachments  of  power,  and  a  vigilant  care  for  the 
rights  and  liberties  of  the  people.  Much  injustice  has  been  done 
the  anti-Federalists  of  the  Convention  in  this  respect,  and  their  views 
are  not  at  this  day  correctly  understood.  No  one  will  question  the 
sincerity  of  Governor  Clinton,  who  is  regarded  as  standing  at  their 
head  ;  and  Governor  Clinton  himself  stated  in  the  Convention,  "  I 
solemnly  declare  that  I  am  a  friend  to  a  strong  and  efficient  govern- 
ment. But,  sir,  we  may  err  in  this  extreme  ;  we  may  erect  a  sys- 
tem that  will  destroy  the  liberties  of  the  people.  *  *  *  Because 
a  strong  government  was  wanted  during  the  late  war,  does  it  follow 
that  we  should  now  be  obliged  to  accept  a  dangerous  one  ?  I  even 
lamented  the  feebleness  of  the  Confederation,"  &c.  &c. 

Similar  views  were  expressed  by  all  the  prominent  members,  inas- 
much as  Mr.  Jay  himself  remarked  in  his  place  :  "  Sir,  it  seems  to 
be  on  all  sides  agreed,  that  a  strong,  energetic,  federal  government 
is  necessary  for  the  United  States."  Mr.  Melancthon  Smith,  the  con- 
fidential friend  of  Clinton,  and  one  of  the  most  ardent  and  uncom- 
promising advocates  of  popular  rights  and  State  sovereignty  on  the 
floor,  and  Mr.  G.  Livingston,  who  moved  the  amendment  authoriz- 
ing the  State  to  recall  their  senators  at  pleasure,  are  both  found 
voting  in  favor  of  an  absolute,  and  against  a  conditional  ratification  ; 
and  if  the  name  of  Mr.  Lansing  is  found  in  the  negative,  it  is  no  more 
than  happened  in  Virginia,  where  the  names  of  Patrick  Henry  and 
James  Monroe  appear  in  opposition  to  that  of  James  Madison,  on  the 
final  question  of  ratification. 

That  the  majority  of  the  Convention  were  in  favor  of  some  sort 


JOHN  JAY.  4.3 

of  ratification,  is  apparent  from  the  description  given  of  the  members 
by  Jay  himself,  in  a  letter  to  Washington  : 

"  The  leaders  in  opposition  seem  to  have  more  extensive  views  than 
their  adherents,  and  until  the  latter  perceive  that  circumstance,  they 
will  probably  continue  combined.  The  greater  number  are,  I  believe, 
averse  to  a  vote  of  rejection.  Some  would  be  content  with  recommen- 
datory amendments  ;  others  wish  for  explanatory  ones,  to  settle  con- 
structions which  they  think  doubtful ;  others  would  not  be  satisfied 
with'  less  than  absolute  and  previous  amendments,  and  I  am  mistaken 
if  there  be  not  a  few  who  prefer  a  separation  from  the  union  to  any 
national  government  whatever.  They  suggest  hints  of  the  import- 
ance of  the  State,  of  its  capacity  to  command  terms,  of  the  policy 
of  its  taking  its  own  time,  and  fixing  its  own  price,  &c.  They  inti- 
mate that  an  adjournment  may  be  expedient,  and  that  it  might  be 
best  to  see  the  operation  of  the  new  government  before  they  receive 
it." 

Mr.  Jay,  of  course,  was  one  of  those  who  desired  the  absolute  and 
unconditional  ratification  of  the  Constitution.  His  influence  in  bring- 
ing this  about  was  no  doubt  great,  though  from  the  sketch  of  the 
debates  it  does  not  appear  that  he  took  any  very  active  or  promi- 
nent part  in  'the  discussions  of  the  Convention.  He  was  not  a  fre- 
quent speaker  ;  indeed  he  was  never  a  very  ready  and  skillful  de- 
bater. He  was  better  adapted  to  the  committee  room,  or  perhaps 
the  chair,  than  the  floor  of  a  deliberative  body.  His  strength,  like 
Mr.  Jefferson's  in  that  respect,  lay  rather  in  his  pen  than  in  oral 
speech.  As  a  pamphleteer  and  political  essayist,  he  had  few  equals  ; 
as  a  parliamentary  orator  he  had  many  superiors,  and  some,  too, 
upon  the  floor  of  the  Convention  itself.  The  efforts  of  Mr.  Jay  can- 
not compare  with  the  clear,  calm,  logical,  comprehensive  speeches 
of  Livingston,  much  less  with  the  bold,  rapid,  impetuous  harangues 
of  Hamilton,  alike  brilliant  as  declamations,  and  convincing  as  argu- 
ments. These  two  were  therefore  regarded  as  in  some  sense  the 
parliamentary  leaders  of  the  Federalists ;  but  Mr.  Jay  in  point  of 
real  influence  was  inferior  to  neither,  and  doubtless  contributed  as 
much  as  any  man  in  the  Convention,  by  his  well-directed  efforts,  cad 
the  weight  of  his  character  and  acknowledged  ability,  to  bring  these 
deliberations  to  a  successful  issue.  Occasionally  too  he  mingled  in 


44  LIVES  OF    THE  CHIEFJUSTICES. 

the  debates,  and  expressed  his  opinions  upon  the  more  important 
questions  raised  with  freedom  and  frankness.  He  spoke  upon  the 
question  of  representation  in  reply  to  Mr.  M.  Smith,  and  while 
avowing  himself  in  favor  of  a  large  representation,  yet  was  satisfied 
with  the  matter  as  the  Convention  had  left  it,  and  urged  a  general 
acquiescence.  He  spoke  also  upon  the  important  question  of  reve- 
nue, and  the  power  of  Congress  to  levy  taxes,  advocating  the  pro- 
priety of  investing  the  General  Government  with  the  command  of 
the  national  resources,  in  opposition  to  the  amendment  proposed  of 
limiting  this  power  by  reserving  to  the  States  the  right  in  certain 
cases  of  regulating  the  supplies.  The  speeches  of  Mr.  Jay  are  char- 
acterized by  great  simplicity  and  candor,  as  well  as  force  of  expres- 
sion and  cogency  of  argument. 

On  the  llth  of  July,  Mr.  Jay  moved  the  unconditional  ratification 
of  the  Constitution,  and  that  such  amendments  as  might  be  deemed 
expedient,  ought  to  be  recommended.  He  was  ably  supported  by 
Chancellor  Livingston  and  Chief-Justice  Morris,  and  opposed  by  Mr. 
Smith.  On  the  15th  July,  the  latter  gentleman  moved,  as  an 
amendment,  that  the  Constitution  ought  to  be  ratified,  on  condition 
that  certain  amendments  specified,  should  be  made.  This  was  the 
test  question,  and  the  serious  struggle  in  the  Convention  now 
occurred.*  A  proposition  to  adjourn,  was  made  and  voted  down. 

*  Ten  of  the  states  had  already  adopted  the  Constitution  before  it  was  ratified 
by  New  York.  The  order  in  which  it  was  ratified  by  the  respective  states  and  the 
votes  thereon,  are  as  follows  : 

Delaware,  December  3,  1787  unanimously. 

Pennsylvania,  December  13,  1787  46  to  23. 

New  Jersey,  December  19,  1787  unanimously. 

Georgia,  January  7,  1788  unanimously. 

Connecticut,  January  9,  1788  140  to  128. 

Massachusetts,  February  6,  1788  187  to  168. 

Maryland,  April  28,  1788  63  to  12. 

South  Carolina,  May  23,  1788  149  to  73. 

New  Hampshire,  June  21,  1788  57  to  46. 

Virginia,  June  25,  1788  89  to  79. 

New  York,  July  25,  1788  30  to  27. 

North  Carolina  and  Rhode  Island  came  into  the  Union  after  the  new  govern- 
ment went  into  operation.  The  former  ratified  the  Constitution  on  the  21st  No- 
vember, 1789  ;  the  latter  not  till  the  29th  May,  1790. 


JOHN  JAY.  45 

A  resolution,  by  Mr.  Lansing,  reserving  the  right  to  New  York  to 
withdraw  from  the  union,  in  like  manner  passed  in  the  negative. 
The  absolute  ratification  would  probably  have  been  also  rejected  if 
the  timely  amendment  moved  by  Mr.  Jones  had  not  been  adopted, 
changing  the  words  on  condition,  into  the  words  in  full  confidence. 
Among  the  affirmative  votes  were,  Mr.  Smith,  Mr.  G.  Livingston, 
Mr.  Williams,  &c.  In  this  shape  the  resolutions  passed  on  the  25th 
July,  by  a  vote  of  30  to  27,  and  New  York  assumed  a  place  among 
her  sister  states  in  the  federal  union. 

The  new  government  was  to  go  into  operation  on  the  4th  March, 
1789.  Congress  was  summoned  to  meet  on  that  day  at  the  city  of 
New  York,  when  the  votes  for  President  and  Vice-President  were 
to  be  counted.  On  the  appointed  day,  however,  it  was  found  that 
a  quorum  was  not  in  attendance,  and  the  two  houses  adjourned. 
The  House  of  Representatives  was  the  first  to  organize  ;  the  Senate 
continued  to  adjourn  from  day  to  day  for  want  of  a  quorum,  until 
the  6th  of  April.  On  that  day  a  quorum  of  both  houses  being 
present,  the  electoral  vote  for  President  and  Yice-President  was 
counted,  when  it  appeared  that  George  Washington,  having  received 
the  whole  number  of  votes  cast,  sixty-nine,*  was  elected  President, 
and  John  Adams  having  received  a  majority  of  all  the  votes,  was 
elected  Yice-Prcsident.  Mr.  Jay  received  the  votes  of  Delaware 
and  New  Jersey,  for  the  Vice-Presidency. 

The  election  of  General  Washington  having  been  announced,  and 
he  having  signified  his  acceptance  of  the  trust,  it  was  thought  proper 
to  make  the  necessary  arrangements  for  the  accommodation  of  the 
President  at  New  York.  These  arrangements  were  not  immediately 
completed,  and  in  the  mean  time  Jay  wrote  to  Washington,  tender- 
ing the  hospitalities  of  his  house,  and  with  a  sincerity  and  delicacy 
that  could  not  fail  to  be  appreciated.  "  As  the  measures  that  were 
in  contemplation  on  this  subject,"  he  says,  "  would  have  given  an 
earlier  invitation  the  appearance  of  a  mere  compliment,  it  was 

*  These  comprised  the  electoral  votes  of  ten  of  the  States  only.  Rhode  Island 
and  North  Carolina  had  not  yet  adopted  the  Constitution,  and  New  York  did  not 
vote.  At  the  opening  of  the  Congress  no  member  from  New  York  appeared  in 
cither  house.  Rufus  King  took  his  scat  in  the  Senate  on  the  25th  of  July,  and 
Gen.  Schuyler  two  days  after. 


46  LIVES  OF  THE  CHIEF-JUSTICES. 

omitted.  Considering  all  circumstances,  I  really  think  you  would 
experience  at  least  as  few  inconveniences  with  me  as  in  any  other 
situation  here.  Your  reluctance  to  give  trouble  will  doubtless  sug- 
gest objections.  Apprised  of  this,  we  shall  be  particularly  careful 
to  preserve  such  a  degree  of  simplicity  in  our  domestic  ai-rangements 
as  will  render  you  easy  on  that.  In  a  word  you  shall  be  re- 
ceived and  entertained  exactly  in  the  way  which,  if  in  your  place,  I 
should  prefer,  viz.,  with  plain  and  friendly  hospitality."  The  com- 
pletion of  the  public  arrangements  for  the  reception  of  Gen.  Wash- 
ington prevented  his  acceptance  of  this  invitation.  He  arrived  in 
New  York  soon  after,  and  delivered  his  inaugural  address  on  the 
30th  April.  /At  his  request  Mr.  Jay  continued  to  act  as  Foreign 
Secretary  until  the  arrival  of  Mr.  Jefferson  from  Europe) 

The  Constitution  provided  that  the  judicial  power  of  the  United 
States  should  be  vested  in  a  Supreme  Court  and  in  such  inferior 
courts  as  Congress  might  from  time  to  time  establish.  At  the  first 
session  of  Congress  the  organization  of  the  federal  judiciary  engaged 
the  early  and  constant  attention  of  that  body.  The  judiciary  bill, 
organizing  the  new  courts,  approved  the  24th  September  1789, 
will  be  more  particularly  noticed  in  the  succeeding  sketch  of  Chief- 
Justice  Ellsworth,  then  a  senator  in  Congress,  from  the  State  of 
Connecticut.  By  its  provisions  a  Chief-Justice  and  five  Associate-Jus- 
tices, were  to  constitute  the  Supreme  Court  of  the  United  States. 

On  the  very  day  of  the  approval  of  the  Judiciary  bill,  the  Presi- 
dent sent  in  to  the  Senate  the  name  of  John  Jay  for  the  office  of 
Chief-Justice,  and  the  names  of  the  following  gentlemen  for  the  offices 
of  Associate-Justices  of  the  Supreme  Court  ; — John  Rutledge,  of 
South  Carolina ;  William  Cushing,  of  Massachusetts  ;  Benjamin  H. 
Harrison,  of  Maryland ;  James  Wilson,  of  Pennsylvania  ;  and  John 
Blair,  of  Virginia  ;  who  were  immediately  confirmed.  Edmund  Ran- 
dolph was  at  the  same  time  appointed  Attorney-General.  Mr. 
Harrison  resigned,  and  James  Iredell,  of  North  Carolina,  was  sub- 
sequently appointed  in  his  place.  . 

General  Washington  had  been  earnestly  desirous  of  securing  the 
services  and  well-known  ability  of  Mr.  Jay  in  support  of  the  new 
government ;  and  the  position  in  which  he  was  now  placed  was  the 


JOHN  JAY.  4.7 

one  which  Jay  himself  had  preferred,  as  most  in  accordance  with 
his  tastes,  his  previous  studies,  and  habits  of  life.* 

The  first  term  of  the  Supreme  Court  was  held  in  New  York,  in 
February,  1790.  The  Chief- Justice,  and  Justices  Gushing,  Wilson, 
and  Blair,  appeared,  f  constituting  a  quorum.  Very  little  seems  to 
have  been  done  except  the  adoption  of  three  or  four  rules  of  court, 
one  relative  to  the  seal  of  the  Supreme  and  Circuit  Courts  ;  another 
in  regard  to  the  admission  of  attorneys  and  counsellors,  and  another 
directing  that  all  process  of  the  court  should  be  in  the  name  of  "  the 
President  of  the  United  States."  At  the  next  term,  in  August  of 
the  same  year,  the  commission  of  Judge  Iredell  was  read,  who  was 
sworn  in,  and  took  his  seat,  soon  after  which  the  Court  adjourned. 
No  case  of  special  importance  seems  to  have  been  argued  before  the 
Court  until  the  August  term,  1192,  when  the  first  motion  was  made 
in  the  case  of  the  State  of  Georgia  vs.  Braislford  and  others  ;  and 
the  important  case  of  Chisholm  vs.  Georgia,  which  will  be  presently 
noticed,  was  also  brought  on  for  argument. 

The  Chief-Justice,  in  the  mean  time,  regularly  rode  the  circuit 
twice  a  year,  in  company  with  one  of  bis  associates.  The  Eastern 
circuit,  in  which  he  resided,  comprised  the  New  England  States 
and  New  York.  The  Judiciary  bill  provided  that  two  Circuit  Courts 
a  year  should  be  held  in  each  district,  by  two  Justices  of  the  Supreme 
Court  and  the  District  Judge. 

The  Chief-Justice  held  his  first  circuit  in  New  York,  on  the  4tli 
April,  1790,  assisted  by  one  of  his  associates  and  the  District  Judge; 
James  Duane,  Esq.,  an  eminent  and  able  lawyer  of  that  time.|  His 
charge  to  the  grand  jury  was  carefully  prepared,  temperate,  and 

•Jay's  appointment  as  Chief-Justice,  in  preference  to  Chancellor  Livingston, 
it  has  been  intimated,  was  the  real  cause  of  the  Chancellor's  abandonment  of  the 
Federal  party,  and  his  subsequent  opposition  to  Jay's  election.  The  authority  for 
this  assertion,  however,  seems  somewhat  questionable.  See  Hammond's  Political 
History  of  Jfew  York,  p.  107. 

f  Judge  Rutledge  did  not  take  his  seat.  He  resigned  the  next  year,  and  the 
commission  of  Thomas  Johnson,  bearing  date  7th  November,  1791,  was  read  at 
the  August  term  1792,  when  that  gentleman  took  his  seat  See  following  sketch 
of  Rutledge. 

J  See  Sketch  of  Duane,  by  Hon.  Samuel  Jones,  in  4th  Vol.  Documentary  Hi* 
tory  of  New  York. 


48  LIVES  OF  THE  CHIEF-JUSTICES. 

discreet,  and  withal  thoroughly  conservative.  "It  cannot  be  too 
strongly  impressed  on  the  minds  of  all,"  he  remarked,  "  how  greatly 
our  individual  prosperity  depends  on  our  national  prosperity,  and 
how  greatly  our  national  prosperity  depends  on  a  well-organized, 
vigorous  government,  ruling  by  wise  and  equal  laws  faithfully  exe- 
cuted. Nor  is  such  a  government  unfriendly  to  liberty — to  that 
liberty  which  is  really  estimable.  On  the  contrary,  nothing  but  a 
strong  government  of  jaws,  irresistibly  bearing  down  arbitrary 
power  and  licentiousness,  can  defend  it  against  these  two  formidable 
enemies." 

Immediately  after  the  close  of  this  Court  the  Chief-Justice  com- 
menced his  first  circuit  through  New  England,  and  was  every- 
where received  with  the  most  flattering  marks  of  respect.  In  those 
primitive  days  it  was  deemed  no  improper  civility,  or  extraordinary 
occurrence,  to  lavish  upon  the  head  of  the  federal  judiciary  the  some- 
what tumultuous  demonstrations  of  popular  applause.  Thus  the 
citizens  of  New  Haven  and  the  citizens  of  Portsmouth  honored  him 
with  "  a  public  entry"  into  these  towns  ;  and  even  the  staid  people 
of  Boston  were  moved  from  their  propriety  in  a  similar  manner. 
A  year  or  two  later  we  find  him  feted  and  toasted  at  public  dinners 
— crossing  the  Hudson  at  Albany  under  the  roar  of  artillery — 
"  attended  for  twelve  miles  on  his  journey  by  a  body  of  cavalry1'— 
entering  the  village  of  Hudson  on  "  Independence  Day,"  amid  the 
ringing  of  bells  and  roar  of  cannon  ;  and,  finally,  received  by  a  de- 
putation of  citizens  eight  miles  from  New  York,  who  carried  him  in 
triumph  into  the  bosom  of  his  native  city.  But  these  latter  demon- 
strations, it  must  be  confessed,  were  political,  and  not  in  compliment 
to  his  judicial  character. 

In  April,  1191,  the  Chief-Justice,  with  Justice  Gushing  and  tho 
District  Judge,  Duane,  held  the  circuit  at  New  York,  and  made  a 
very  important  decision,  involving  the  jurisdiction  and  powers  of  the 
Justices  of  the  Supreme  Court.  Congress  had  passed  an  act  to 
regulate,  among  other  things,  the  claims  to  invalid  pensions.  Under 
this  act  certain  duties  were  assigned  to  the  .Circuit  Courts  ;  but  the 
decisions  of  the  courts  thereon  were  made  subject,  first  to  the  con- 
sideration and  suspension  of  the  Secretary  of  War,  and  then  to  the 
revision  of  Congress.  It  speaks  well  for  the  independence  and 


JOHN  JAY.  49 

firmness  of  the  Supreme  Court,  even  at  that  early  day,  to  observe 
the  Judges  standing  up  boldly  to  resist  a  constitutional  encroach- 
ment. The  Chief-Justice  and  his  associates  refused  to  perform  judi- 
cially the  duties  imposed  by  the  act.  They  declared  that,  by  the 
Constitution,  neither  the  Secretary  of  War,  nor  any  other  executive 
officer,  nor  the  Legislature  itself,  was  authorized  to  bit  as  a  court  of 
errors  on  the  judicial  acts  or  opinions  of  the  Court.  They  regarded 
the  act  therefore  as  appointing  the  judges  commissioners  merely, 
which  appointment  they  might  accept  or  decline  at  their  option.  In 
this  case,  as  they  desired  to  manifest  in  every  proper  manner  their 
respect  for  the  national  Legislature,  they  would  execute  the  act, 
not  as  a  court,  but  in  the  capacity  of  commissioners.  Similar  views 
were  taken  of  the  act  in  the  Circuit  Court  of  Pennsylvania  by  Jus- 
tices Wilson  and  Blair,  and  Peters,  District  Judge,  who  united  in 
representing  their  opinions  in  a  joint  letter  addressed  to  the  Pre- 
sident. 

At  the  August  term  of  the  Supreme  Court,  1792,  a  motion  was 
made  by  the  Attorney- General  for  a  mandamus,  directed  to  the  Cir- 
cuit Court  of  Pennsylvania,  commanding  it  to  proceed  on  the  peti- 
tion of  William  Heyburn,  as  an  invalid  pensioner.  The  Attorney- 
General  made  an  elaborate  argument  upon  the  merits  of  the  case  and 
the  refusal  of  the  Judges  to  carry  the  law  into  effect.  The  Court 
held  the  case  under  advisement  until  the  next  term  ;  but  no  decision 
was  ever  pronounced,  as  Congress,  in  the  mean  tune,  provided  for  the 
relief  of  pensioners  by  another  law. 

At  this  same  term  was  brought  on 'for  argument  the  first  motion 
in  the  important  case  of  the  State  of  Georgia  vs.  Braislford  et  al. 
The  case  presented  several  novel  questions  connected  with  the  Con- 
stitution jurisprudence  of  the  country,  and  is  remarkable  as  being  the 
only  case  in  which  a  special  trial  by  jury  has  ever  been  had  be^ 
fore  the  Supreme  Court.  The  State  of  Georgia  had  passed  an  act 
of  confiscation,  whereby  it  was  claimed  that  the  debt  in  contro- 
versy— a  bond  made  by  Kelsey  and  Spalding  to  Braislford  and 
others,  whom  it  was  alleged  were  aliens — had  been  sequestrated  to 
the  State.  Notwithstanding  then*  alienage  and  the  act  of  confis- 
cation, Braislford  and  his  co-partners  had  brought  an  action  on 
the  bond  against  Kelsey  and  Spalding  in  the  Circuit  Court  of 
4 


50  LIVES  OF    THE  CHIEF-JUSTICES. 

Georgia.  The  State  of  Georgia  applied  to  be  admitted  to  assert 
her  claim,  but  was  refused,  and  judgment  passed  for  the  plaintiffs. 
The  State  now  filed  a  bill  in  equity  and  moved  that  an  injunction 
might  issue  to  stay  further  proceedings  in  the  Circuit  Court,  and 
'also  to  the  Marshal  of  the  Georgia  district  to  stay  money  levied  on 
any  execution  that  might  have  come  to  his  hands.  This  motion 
was  made  and  argued  by  Alexander  J.  Dallas,  of  Pennsylvania,* 
one  of  the  most  eminent,  as  he  was  decidedly  one  of  the  most 
accomplished  and  able  lawyers  of  that  day,  and  was  opposed  by  the 
Attorney-General,  Mr.  Randolph.  The  Court,  after  argument,  de- 
livered their  opinions  seriatim. 

Justice  Johnson  was  of  the  opinion  that  if  the  State  had  a  right 
to  the  debt  in  question,  it  might  be  enforced  at  common  law,  and 
that  an  injunction  should  not  issue.  Justice  Gushing  was  of  a  simi- 
lar opinion.  On  the  other  hand,  Justices  Blair,  Iredell,  and  Wilson, 
thought  that  a  temporary  injunction  should  issue  till  the  Court  should 
be  enabled  by  a  full  inquiry  to  decide  upon  the  whole  merits  of  the 
case  ;  though  the  latter  was  inclined  to  think  that  the  more  proper 
course  would  have  been  for  Georgia  to  have  sued  out  a  writ  of  er- 
ror, rather  than  have  asked  for  an  injunction.  In  these  views  the 
Chief-Justice  concurred,  and  accordingly  an  injunction  issued. 

*  ALEXANDER  J.  DALLAS  was  a  native  of  the  Island  of  Jamaica,  and  born  on  the 
1st  day  of  June,  1759.  He  was  educated  in  Europe,  and  emigrated  to  Philadel- 
phia in  1783.  Two  years  after  his  arrival  he  was  admitted  to  the  bar.  In  a  few 
years  he  acquired  a  distinguished  reputation  as  a  lawyer  ;  and  on  the  organiza- 
tion of  the  Federal  judiciary  we  find  him  engaged  in  nearly  all  the  important 
causes  in  the  Supreme  Court,  and  the  criminal  trials  of  these  days.  Mr.  Dallas 
was  several  years  Secretary  of  the  Commonwealth  of  Pennsylvania.  He  pub- 
lished the  four  volumes  of  the  Reports  which  bear  his  name,  containing  the  ear- 
lier decisions  of  the  Pennsylvania  and  the  Federal  Courts.  He  also  published  an 
edition  of  the  laws  of  Pennsylvania,  which  he  illustrated  with  notes  and  refer- 
ences. 

In  1801  Mr.  Dallas  was  appointed  by  Mr.  Jefferson  District  Attorney  for  the 
Eastern  District  of  Pennsylvania,  and  in  1808  he  was  invited  to  a  place  in  the 
Cabinet  as  Secretary  of  the  Treasury.  He  continued  in  the  Cabinet  until  1816,  a 
part  of  which  time  he  performed  the  duties  of  Secretary  of  War.  Returning 
again  to  the  bar,  on  his  resignation  of  this  office,  he  resumed  an  extensive  and 
brilliant  practice,  which  was,  however,  interrupted  the  next  year  by  an  untimely 
death.  He  died  on  the  16th  January,  1817,  in  the  58th  year  of  his  age. 


JOHN  JAY.  51 

At  the  following  term,  February,  1793,  the  case  was  again  brought 
before  the  Court  on  a  motion  by  the  Attorney-General  to  dissolve 
the  injunction  and  dismiss  the  bill.  Justices  Iredell  and  Blair  were 
still  of  opinion  that  the  injunction  ought  to  be  sustained,  but  the 
rest  of  the  Court  coincided  in  the  opinion  delivered  by  the  Chief- 
Justice  that  if  Georgia  had  a  right  to  the  debt,  it  was  a  right  to  be 
pursued  at  common  law,  and  it  was  ordered  that  the  injunction  should 
stand  until  the  next  term,  when  it  would  be  dissolved,  unless  Geor- 
gia instituted  her  action  at  common  law.  An  amicable  action  was 
.  accordingly  entered,  in  which  an  issue  was  made  up  whether  the  debt 
and  the  right  of  action  belonged  to  the  State  of  Georgia,  or  to  the 
original  creditors.  This  issue  was  brought  to  trial  before  a  jury  at 
the  February  term,  1794.  The  question  was  argued  with  great  abil- 
ity, and  learning,  by  Dallas  and  Ingersoll  for  the  State,  and  by 
William  Bradford,  who  had  been  appointed  Attorney-General  in 
place  of  Randolph,  for  the  defendants.  The  cause  went  to  the  jury 
under  the  charge  of  the  Chief-Justice,  who  declared  it  as  the  unani- 
mous opinion  of  the  Judges,  that  the  act  of  Georgia  did  not  vest  the 
debt  in  the  State  at  the  tune  of  passing  it ;  that  it  was  subjected 
not  to  confiscation,  but  only  to  sequestration,  and  the  owner's  right  to 
recover  it  revived  at  the  peace..  The  jury,  under  this  charge,  of 
course,  returned  a  verdict  against  the  State,  and  the  injunction  was 
accordingly  dissolved.* 

At  the  February  term  of  the  Court,  1793,  held  at  Philadelphia, 
the  celebrated  case  of  Chisholm  Executors  vs.  Georgia,  was  brought 
on  for  argument.f  This  great  case  excited  an  unusual  degree  of  at- 
tention, both  on  account  of  the  novelty  of  the  questions  raised,  and 
the  important  political  consequences  that  were  supposed  to  be  involv- 
ed in  the  decision.  The  doctrine  of  State  sovereignty,  and  State 
rights,  was  for  the  first  time  brought  before  the  Court,  for  discussion. 
The  question  was,  whether  a  state  was  amenable  to  the  jurisdic- 
tion of  the  Supreme  Court,  at  the  suit  of  a  citizen  of  another  state, 
a  question  which  might,  in  the  language  of  Judge  Wilson,  ultimately 
resolve  itself  into  another  no  less  radical  than  this,  "  Do  the  United 
States  constitute  a  nation  ?  "  Chisholm,  a  citizen  of  South  Carolina, 

*  See  this  case  reported,  2  Dallas,  403,  415.    3  Dallas,  1. 
t  2  Dallas,  419. 


52  LIVES   OF   THE  CHIEF-JUSTICES. 

had  brought  an  action  against  the  State  of  Georgia  by  service  of 
process  upon  the  Governor  and  Attorney-General  of  that  State. 
Georgia  refused  to  appear,  and  now  the  Attorney-General  of  the 
United  States  moved  that  unless  Georgia  caused  her  appearance  to 
be  entered  by  the  next  terra,  judgment  should  be  rendered  against 
her  by  default,  and  a  writ  of  inquiry  issue.  No  case  of  a  similar 
kind  had  yet  been  regularly  brought  before  the  Court  for  adjudication. 
In  a  case  against  Maryland,  the  Attorney-General  of  the  State  had 
voluntarily  appeared.  In  a  case  against  the  State  of  New  York  a 
motion  had  been  made  to  compel  an  appearance  on  the  part  of  the 
State,  but  while  the  Court  held  the  motion  under  advisement  the  suit 
had  been  discontinued.*  The  question  was  now  brought  up  on  the 
motion  of  Mr.  Randolph,  the  Attorney-General,  who  delivered  a 
lucid  and  most  masterly  argument,  the  analysis  of  which,  gives  us 
the  highest  opinion  of  the  forensic  talents,  and  profound  legal  attain- 
ments of  that  gentleman.  The  State  of  Georgia  refused  to  recog- 
nize the  jurisdiction  even  so  far  as  to  appear  upon  the  argument,  but 
presented  by  Mr.  Dallas  and  Mr.  Ingersoll,  an  eminent  lawyer  of  the 
Philadelphia  bar,f  a  written  remonstrance  and  protestation  on  be- 
half of  the  State.  Under  these  circumstances  this  important  ques- 
tion was  considered  by  the  Judges,  who,  after  advisement  and  careful 
deliberation,  pronounced  their  opinions  seriatim. 

*  Oswald  vs.  State  of  New  York,  2  Ball.  401.  But  see  same  case,  2  Ball.  415, 
•where  default  against  the  State  was  ordered  to  be  taken  at  the  next  term,  unless 
appearance  was  entered. 

t  JAEED  INGERSOLL  was  at  that  time  Attorney-General  of  Pennsylvania,  a  post 
which  he  held  from  1791  to  1800,  and  again  from  1811  to  1816.  He  was  born  in 
New  Haven  in  1750,  was  educated  to  the  bar,  and  in  1773  was  sent  to  London  to 
complete  his  education  at  the  Temple.  Mr.  Ingersoll  left  England  after  the  De- 
claration of  Independence,  and  went  to  France,  where  he  remained  for  some  time, 
after  which  he  returned  to  Philadelphia  to  the  practice  of  the  law.  His  success 
was  immediate,  and  he  was  soon  at  the  head  of  his  profession,  "  in  the  midst,"  says- 
a  judicious  writer,  "  of  the  well-known  formidable  competition  of  a  day  when 
the  bar  of  Philadelphia  by  concession  led  the  Union,  and  gave  birth  to  a  proverb 
which  has  been  handed  down  to  present  times."  Mr.  Ingersoll  declined  the  place 
offered  him  of  Judge,  on  the  organization  of  the  Circuit  Court,  for  New  Jersey, 
Pennsylvania  and  Delaware,  in  1801.  He  presided,  however,  for  a  short  time  pre- 
ceding his  death,  in  the  District  Court  at  Philadelphia.  In  1812  Mr.  Ingersoll  \vas 
a  candidate  for  Vice-President.  Ho  died  in  1822,  at  the  age  of  seventy. 


JOHN  JAY.  53 

The  opinion  of  the  Chief-Justice  in  this  case,  is  by  far  the  most 
elaborate,  perhaps  the  most  able,  delivered  by  him  while  on  the 
bench.  It  occupies  over  ten  pages  of  the  printed  report  of  the  case. 
He  makes  no  reference  to  cases,  for  the  reason  given  by  him  that  he 
knows  of  none  which  are  not  distinguishable  from  this  case.  Unlike 
the  learned,  and  somewhat  scholastic  opinion  of  his  associate,  Jus- 
tice Wilson,  in  the  same  case,  he  does  not  attempt  an  analysis  and 
comparison  of  other  forms  of  government  and  social  institutions,  nor 
does  he  undertake  to  discuss  the  opinions  of  writers  on  government, 
and  the  rights  of  man,  or  show  the  harmony  of  their  views  with  the 
principles  which  governed  his  own  judgment.  He  discusses  the 
question  purely  as  a  practical,  constitutional  question  ;  he  examines 
it  in  three  separate  propositions.  1st,  In  what  sense  Georgia  is  a 
sovereign  State  ?  2d,  Whether  suability  is  compatible  with  such 
sovereignty  ?  3d,  Whether  the  Constitution  authorizes  such  an  ac- 
tion against  her?  To  the  first  proposition  he  applies  those  strong 
federal  views  and  ideas  of  nationality,  which  he  was  always  known 
to  entertain,  going  to  the  very  opposite  extreme  of  the  doctrine  of 
state  rights  and  state  sovereignty.  A  corporation  was  an  aggregate 
of  individuals,  and  so  was  a  state.  The  citizens  of  Philadelphia, 
numbering  forty  thousand,  in  their  corporate  capacity,  were  suable 
by  a  single  citizen,  and  there  was  no  reason  why  the  fifty  thousand 
citizens,  of  Delaware  should  not  be.  He  distinguishes,  it  is  true, 
between  the  case  of  a  su.it  against  the  United  States,  and  a  suit 
against  a  state,  because  the  national  courts  being  supported  by  the 
arm  of  the  Executive  power  of  the  United  States,  that  power  could 
not  be  exercised  against  itself.  The  sovereignty  of  Georgia  was 
therefore  not  absolute,  but  subordinate  to  the  nationality  of  the 
United  States.  There  was  nothing  incompatible  with  such  sovereign- 
ty, in  a  public  arraignment  in  a  court  of  law  at  the  suit  of  a  citi- 
zen of  another  state,  in  an  action  of  assumpit  for  the  breach  of  a 
contract ;  and  moreover,  the  Constitution,  to  which  Georgia  had  ac- 
ceded, authorized  such  a  suit.* 

*In  reference  to  this  decision  Chancellor  Kent  observes  in  his  commentaries : 
"  It  is  a  little  remarkable  that  the  Court,  in  one  of  its  earliest  decisions,  should  have 
assumed  a  jurisdiction  which  the  authors  of  the  Federalist  had  a  few  years  before 
declared  to  be  without  a  color  of  foundation. 


54  LIVES  OF  THE  CHIEF-JUSTICES. 

These  views  were  not  concurred  in  by  Judge  Iredell,  who  deliv- 
ered a  dissenting  opinion.  That  able  jurist  considered  the  question 
also  in  a  Constitutional  point  of  view,  and  as  a  question  of  strict 
construction.  With  great  force  of  reasoning,  and  admirable  preci- 
sion and  clearness  of  illustration,  he  analyzed  the  argument  of  the 
Attorney-General,  and  arrived  at  exactly  the  opposite  conclusion. 
His  opinion  was,  that  no  part  of  the  existing  law  applied  to  this  case  ; 
and  even  if  the  Constitution  would  admit  of  the  exercise  of  such  a 
power,  a  new  law  was  necessary  to  carry  the  power  into  effect,  and 
that  assumpsit  at  the  suit  of  a  citizen  would  not  lie  against  a  state. 
One  can  scarcely  arise  from  a  careful  perusal  of  this  able  opinion 
without  being  sensibly  impressed  with  the  force  of  the  reasoning  of 
the  learned  Judge,  and  the  accuracy  of  his  deductions  ; — lucid,  logi- 
cal, compact,  comprehensive,  it  certainly  compares  very  favorably 
with  that  of  the  Chief-Justice,  in  every  respect,  and  as  a  mere  legal 
argument  must  be  admitted  to  be  far  superior.*  The  majority  of 
the  Court,  however,  concurred  with  the  Chief-Justice  and  granted 
the  motion. 

This  decision  created  much  excitement  in  the  public  mind  at  the 
tune.  The  subject  was  at  once  brought  before  several  of  the  State 
Legislatures,  and  an  amendment  of  the  Constitution  proposed. 

*  JUDGE  IREDELL  maybe  regarded  as  one  of  the  ablest  of  the  many  distinguished 
jurists  who  have  graced  the  bench  of  the  Supreme  Court.  He  had  been  a  dele- 
gate to  the  Constitutional  Convention  of  the  State  of  North  Carolina,  and  was 
appointed  to  the  Bench  of  the  Supreme  Court,  in  place  of  Mr.  Harrison  of  Mary- 
land, one  of  the  originally  commissioned  judges,  who  declined.  As  a  constitutional 
lawyer,  Judge  Iredell  had  no  superior  upon  the  bench.  His  judicial  opinions  are 
marked  by  great  vigor  of  thought,  clearness  of  argument,  and  force  of  expression. 
He  did  not  always  concur  with  the  majorityof  his  brethren  in  their  constitutional 
constructions,  and  on  such  occasions  rarely  failed  to  sustain  his  positions  by  the 
strictest  legal,  as  well  as  logical  deductions.  In  the  interesting  case  of  Ware  vs. 
Hylton,  3  Dallas  199— (referred  to  in  sketch  of  Ch.  J.  Marshall)— his  dissenting 
opinion  exhibits  uncommon  research,  learning  and  ability.  As  a  legal  argument 
it  may  be  regarded  as  one  of  the  best  specimens  that  have  been  preserved  of  the 
old  Supreme  Court.  In  the  case  of  Wilson  vs.  Daniels,  3  Dallas  401,  (referred  to 
in  the  subsequent  sketch  of  Chief-Justice  Ellsworth,)  he  also  dissented,  and  his 
views  relative  to  jurisdiction  on  a  writ  of  error  were  subsequently  adopted  by 
the  Court  overruling  the  prevailing  opinion  in  that  case.  Judge  Iredell  died  in 
1799,  and  was  succeeded  by  Hon.  Alfred  Moore  of  North  Carolina. 


JOHN  JAY.  55 

The  advocates  of  state  rights  viewed  the  decision  as  a  direct  at- 
tack upon  the  sovereignty  of  the  States.  Georgia  openly  defied  the 
federal  authority,  and  refused  to  enter  her  appearance.  The  Su- 
preme Court,  however,  stood  firm.  At  the  February  term,  1194, 
judgment  was  rendered  against  the  State  by  default,  and  a  writ  of 
inquiry  awarded.  Where  the  controversy  would  have  ended,  it  is 
impossible  to  conjecture,  had  not  the  question  been  put  at  rest  by  a 
speedy  amendment  of  the  Constitution,  which  declared  that  the  ju- 
risdiction of  the  Supreme  Court  should  not  extend  to  suits  against 
a  state  by  citizens  of  another  state,  or  subjects  of  a  foreign  state. 
This  amendment  having  been  adopted,  it  was  unanimously  determined 
by  the  Court,  at  the  February  term,  1798,  that  no  farther  juris- 
diction could  be  exercised,  in  any  case,  past  or  future,  wherein  a 
state  should  be  sued  by  citizens  of  another  state. 

This  is  not  a  proper  place,  perhaps,  to  enter  upon  a  review  of  that 
series  of  exciting  political  trials  whicB  grew  out  of  the  foreign  rela- 
tions of  the  United  States,  and  commenced  during  the  latter  period 
of  Mr.  Jay's  service  on  the  bench.  I  may  allude,  however,  to  one  of 
the  earliest  and  most  celebrated  of  these  trials, — that  of  Henfield, 
an  American  citizen,  tried  on  an  indictment  for  enlisting  in  a  French 
privateer — as  well  on  account  of  the  extraordinary  interest  and  nov- 
elty of  the  case  itself,  as  for  the  purpose  of  bringing  to  view  a  most 
important  principle  advanced  by  the  Chief-Justice,  with  the  direct  or 
tacit  concurrence  of  nearly  all  his  associates.  The  principle  alluded 
to  is,  that  by  the  common  law,  independent  of  any  statute,  the 
federal  courts  have  power  to  punish  offences  against  the  federal 
sovereignty — a  doctrine  which  seems  to  have  grown  out  of  the  polit- 
ical emergencies  of  the  tunes,  but  which  has  been  shaken  by  subse- 
quent decisions,  and  it  is  believed,  is  now  finally  abandoned.  This 
doctrine  is  found  laid  down  in  a  charge  delivered  by  the  Chief-Justice 
to  the  first  federal  grand  jury  ever  impannelled,  at  Richmond,  in  the 
State  of  Virginia.  He  had  been  summoned,  it  appears1,  to  hold  this 
Court  for  this  express  purpose,  and  his  charge,  though  not  delivered 
to  the  particular  grand  jury  by  which  Henfield  was  indicted,  had 
been  prepared  with  great  deliberation  and  care,  for  the  purpose  of 
settling  the  law  generally  as  applicable  to  this  class  of  offenders. 
This  charge  (which  was  deemed  of  so  much  consequence  as  to  be 


56  LIVES  OF  THE  CHIEF-JUSTICES. 

printed  by  order  of  the  government,  for  the  purpose  of  explaining 
abroad  the  position  of  the  United  States,)  very  clearly  and  explic- 
itly enunciated  the  principle  that  any  American  citizen  who  should 
violate  the  neutrality  recently  proclaimed  by  the  President,  was  to 
be  deemed  guilty  of  a  violation  of  the  laws  of  the  United  States, 
and  liable  to  a  prosecution  in  the  federal  courts,  under  an  indicts 
ment  at  common  law,  for  disturbing  the  peace  ;  or,  to  quote  the 
very  language  of  the  Chief-Justice,  "  That  the  United  States 
are  in  a  state  of  neutrality  relative  to  all  the  powers  at  war,  and 
that  it  is  their  duty,  their  interest,  and  their  disposition,  to  maintain 
it ;  that,  therefore,  they  who  commit,  aid,  or  abet  hostilities  against 
these  powers,  or  either  of  them,  offend  against  the  laws  of  the  Uni- 
ted States,  and  ought  to  be  punished ;  and  consequently,  that  it  is 
your  duty,  gentlemen,  to  inquire  into,  and  prevent  all  such  of  these 
offences,  as  you  shall  find  to  have  been  committed  within  this 
district."* 

Under  the  rule  of  law  thus  laid  down,  and  as  subsequently  applied 
and  amplified  by  Judge  Wilson,  in  one  of  his  learned  and  scholastic 
discourses  to  the  grand  jury,  two  months  after  at  Philadelphia, 
Gideon  Henfield,  a  citizen  of  the  United  States,  was  indicted  for  en- 
listing on  the  "  Citizen  Genet,"  an  armed  vessel,  commissioned  by 
the  French  Revolutionary  Government,  then  at  war  with  England 
and  other  European  states. 

We  may  read  in  our  day  with  a  feeling  of  astonishment  the  pro- 
ceedings on  an  indictment,  deliberately  found,  gravely  argued,  and  even 
sustained  by  the  Court,  on  common-law  principles,  against  a  single  in- 
dividual, for  an  alleged  offence  against  the  law  of  nations,  defined  by 
no  statute  of  the  United  States,  and  which,  if  a  crime,  under  the  law 
of  nations,  was  precisely  such  an  one  as  had  been  committed  by  La- 
fayette, Kosciusko,  and  Dekalb,  in  defence  of  American  Independence. 
The  case,  of  course,  at  once  aroused  party  spirit,  and  political  feeling. 
The  fiercest  invectives  from  both  sides  were  launched  by  the  respec- 
tive partisans  and  opponents  of  the  French  republic  at  their  adver- 
saries. The  English  minister  had  demanded  the  arrest  of  Henfield  ; 
the  French  minister,  after  his  arrest,  demanded  his  release.  The 
government  was  determined  to  sustain,  in  its  full  force,  the  procla- 

*  See  the  whole  of  this  charge  published  in  Wharton's  State  Trials,  p.  49. 


JOHN  JAY.  57 

mation  of  neutrality,  and  for  that  purpose,  as  we  have  seen,  the  aid 
of  the  Supreme  Court  had  been  invoked.  It  was  not  to  be  disguis- 
ed that  the  contest  would  be  formidable.  There  was  among  the 
American  people  a  deep,  and  wide-spread  sympathy  with  the  young 
republic  of  France,  struggling  in  what  appeared  to  be  its  death 
agony,  in  a  contest  with  that  unhallowed  coalition  which  Europe, 
under  the  lead  of  England,  had  raised  to  crush  democracy  in  its 
cradle.  t  The  generous  instincts  of  the  American  people  were  all  for 
freedom.  The  great  mass  of  the  people  did  not  reason  upon,  per- 
haps did  not  comprehend,  the  question  of  policy  involved  in  the  de- 
claration of  neutrality,  and  they  could  not,  therefore,  be  made  to 
understand  the  crime  of  Henfield  in  enlisting  on  a  French 
cruiser,  under  the  tri-color  flag  of  liberty.  Popular  sympathy  was 
strong  in  his  favor.  Brought  to  trial,  all  the  formidable  power  of 
the  Court,  consistent  with  a  fair  and  impartial  hearing  of  the  case, 
was  arrayed  against  him,  but  all  to  no  effect.  The  well  known  abil- 
ity of  the  Attorney-General,  united  with  the  legal  acumen  and  for- 
ensic skill  of  the  District- Attorney  of  Pennsylvania,  Mr.  Rawle,* 

*  WILLIAM  RAWXE  was  bora  in  Philadelphia  in  1759,  and  was  descended  from 
an  old  and  respectable  family  of  the  early  settlers.  Having  commenced  his  legal 
studies  in  New  York,  he  crossed  the  Atlantic,  and  was  entered  a  student  in  the 
Middle  Temple.  Returning  to  America  he  entered  upon  his  profession,  but  found 
his  progress  slow,  so  much  so,  that  at  one  time  he  resolved  to  abandon  it.  Ten 
years  passed  before  he  could  be  assured  of  success.  As  to  that  success,  it  is  enough 
to  say,  that  for  more  than  twenty  years  his  business  was  very  large,  and  he  occu- 
pied, deservedly,  a  front  rank  at  the  Philadelphia  bar.  Mr.  Rawle  was  much 
engaged  in  the  political  trials  of  that  period.  He  never  held  but  one  public  office, 
that  of  District- Attorney  of  Pennsylvania,  which  he  received  at  the  hands  of 
Washington.  His  thoughts,  habits,  and  feelings  were  all  professional,  and  to  his 
profession  he  devoted  the  best  and  most  valuable  part  of  a  Jong  life.  In  1794,  Mr. 
Rawle,  together  with  Hamilton,  accompanied  George  Washington  into  the  west- 
ern part  of  the  State  of  Pennsylvania,  for  the  purpose  of  quelling  the  insurrection 
which  there  broke  out.  In  this  expedition  he  formed  one  of  the  family,  and  shared 
the  tent  of  Washington.  Subsequently  he  was  engaged  in  his  official  capacity,  as  the 
representative  of  the  government  in  the  prosecution  of  these  offenders.  Mr. 
Rawle  was  the  author  of  a  "  treatise  on  the  Constitution  of  the  United  States." 
He  was  also  a  member  of  the  commission  appointed  in  1830,  to  revise  and  digest 
the  civil  code  of  Pennsylvania.  He  died  in  April,  1836.  "  His  mind,"  says  a 
writer,  "  was  eminently  clear  and  discriminating,  and  his  arguments  and  speeches 
simple,  strong,  earnest  and  impressive."  His  amiability  of  temper,  and  kind  and 


58  LIVES  OF  THE  CHIEF-JUSTICES. 

was  exerted  in  vain.  In  vain  did  the  Court  lay  down  with  the  most 
scrupulous  and  minute  exactness,  the  doctrines  of  law,  as  settled  by 
the  charge  of  Chief-Justice  Jay.  The  jury  rendered  a  verdict 
of  "  not  guilty,"  and  "  citizen  Henfield"  retired  in  triumph  amid 
the  plaudits  and  acclamations  of  the  crowd.*  The  verdict  was  re- 
garded by  the  popular  party  as  a  substantial  triumph  over  the  gov- 
ernment, as  well  as  the  Court.  In  some  sense  it  was  so,  for  it  un- 
doubtedly impeded  the  vigorous  execution  of  the  proclamation  of 
neutrality,  so  far  as  the  acts  of  individuals  were  concerned,  though 
it  did  not  of  itself  impair  the  doctrines  laid  down  by  the  Chief- 
Justice,  and  the  federal  courts.  Henfield  was  not  acquitted  on  the 
ground  of  any  misdirection  as  to  the  law  of  the  case,  but  on  the 
ground  that  the  crime  was  not  knowingly  and  wilfully  committed,  and 
therefore,  as  Mr.  Jefferson  observed  in  a  letter  to  Mr.  Morris,  then 
in  England,  the  jury  did  no  more  than  the  Constitutional  authority 
might  have  done. 

The  doctrine  of  a  common  law  jurisdiction,  in  criminal  cases, 
seemed  to  be  thus  an  established  principle  in  the  federal  courts. 
Chief-Justice  Jay  held  the  April  session  of  the  Circuit  Court,  in  1794, 
for  the  Pennsylvania  district,  and  had  occasion  again  to  apply  the 
same  principle.  Joseph  Ravara,  a  Consul  of  Genoa,  was  brought 
to  trial  before  him  on  an  indictment  for  sending  threatening  letters 
to  the  British  minister,  and  others,  with  a  view  of  extorting  money. 
Ravara's  counsel,  Messrs.  Dallas,  Lewis,  f  and  Heatley,  seem  to 
courteous  deportment  at  the  bar,  are  mentioned  as  among  the  most  pleasing  traits 
of  his  character  and  manners. 

*  So  elated  was  the  French  minister,  Genet,  at  this  triumph  over  the  Court, 
that  he  immediately  issued  cards  to  a  grand  dinner  party  to  meet  "  citizen  Hen- 
field,"  and  that  patriotic  personage  was  formally  taken  under  the  protection  of  the 
French  republic.  It  may  be  interesting  to  the  reader  to  know  that  sallying  out 
soon  after  on  a  new  excursion,  he  was  captured  by  a  British  cruiser,  and  thus 
"  citizen  Henfield"  passes  from  the  stage. 

f  WILLIAM  LEWIS  was  bora  in  Chester  County,  Pennsylvania,  in  1751,  on  a 
email  farm,  in  a  family  whose  stringent  Quakerism,  it  is  said,  held  a  liberal,  and 
especially  a  professional  education  to  be  inconsistent  both  with  common  sense  and 
religious  duty.  His  early  education  was  therefore  deficient,  nor  did  he  in  after  life 
reach  any  considerable  degree  of  literary  attainment.  His  learning  was  almost  ex- 
clusively confined  to  his  profession,  and  though  several  times  elected  to  Legislative 
bodies,  and  for  a  brief  period,  under  Washington's  administration,  holding  the 


JOHN  JAY.  59 

have  placed  his  defence  mainly  upon  the  ground,  that  the  act  com- 
plained of  was  not  a  crime  at  common  law,  nor  was  it  made  such  by 
any  positive  law  of  the  United  States.  Judge  Jay,  in  his  charge  to 
the  jury,  ruled  otherwise,  and  sustained  the  indictment  on  common 
law  principles.  The  prisoner  was  convicted,  but  was  afterwards  par- 
doned on  surrendering  his  commission  and  exequatur, 

It  only  remains  to  be  added,  on  this  subject,  that  this  doctrine,  so 
positively  asserted,  and  rigorously  applied  by  the  Chief-Justice  and 
most  of  his  associates  in  the  Supreme  Court,  was  a  few  years  af- 
ter unsettled,  and  may  now  be  considered  as  entirely  overthrown. 
The  keen,  bold,  and  penetrating  mind  of  Judge  Chase,  gave  it  the 
first  blow  on  the  trial  of  Worrall,  at  Philadelphia,  in  1198,  when  in 
the  face  of  the  known  opinions  of  all  his  associates,  and  as  a  very 
judicious  writer  remarks,  "  with  that  quick  perception  of  the  spirit 
of  the  Constitution,  for  which  his  clear  intellect  was  so  conspicu- 
ous " — he  abruptly  and  boldly  denied  that  the  federal  courts  pos- 
sessed any  such  common  law  Jurisdiction.*  Soon  after,  Judge  Wash- 
office  of  District-Judge  of  Pennsylvania,  yet  it  is  as  a  lawyer,  and  mainly  as  an 
advocate  at  the  bar,  that  he  is  best  and  most  favorably  known.  Lewis  commenced 
his  practice  in  1773,  and  though  his  business  was  interrupted  during  the  Revolu- 
tion, yet  it  again  revived  at  the  close  of  the  war,  and  owing  in  some  degree  to  his 
supposed  partiality  for  the  royal  cause  during  the  Revolution,  he  at  once  succeeded 
in  obtaining  a  most  extensive  and  lucrative  practice  among  the  Quaker  loyalists 
of  Pennsylvania.  Mr.  Lewis  was  engaged  in  some  of  those  celebrated  crimiual 
trials  which  began  to  occupy  the  attention  of  the  community,  soon  after  Mr. 
Jay  left  the  bench.  He  was  the  leading  counsel  in  the  trial  of  the  western  insur- 
gents, and  it  is  said,  that  his  pride  of  conscious  superiority  at  the  bar  was  so  much 
wounded  by  the  request  of  the  defendants'  friends  to  admit  Mr.  Dallas  as  his  asso- 
ciate, that  he  expressed  himself  with  such  asperity  and  superciliousness  iu  regard 
to  Mr.  Dallas,  as  called  out  from  the  latter  gentleman  a  challenge.  This  Lewis 
accepted,  but  the  difficulty  was  amicably  arranged,  and  both  gentlemen  afterwards 
appeared  as  counsel  for  Fries,  the  first  of  the  insurgents  who  was  brought  to  trial. 

Mr.  Lewis  continued  at  the  bar,  in  the  practice  of  his  profession,  with  increas- 
ing reputation  and  unabated  ability,  until  the  time  of  his  death,  which  occurred 
on  the  15th  August,  1819. 

*  The  District-Attorney,  Mr.  Rawle,  was  in  the  midst  of  his  argument  in  re- 
ply to  Mr.  Dallas,  discussing  the  question  of  jurisdiction  in  another  point  of  view, 
when  to  his  utter  dismay,  and  the  astonishment  of  the  whole  bar,  Judge  Chase  inter- 
rupted him  with  the  question:  "Do  you  mean,  Mr.  Attorney,  to  support  this  in- 
dictment solely  at  common  law  ?  If  you  do,  I  have  no  difficulty  upon  the  subject ; 


gO  LIVES  OF  THE  CHIEF-JUSTICES. 

ington,  at  the  circuit,  coincided  in  the  opinion  of  Judge  Chase. 
He  was  followed  by  that  eminent  jurist,  Chief-Justice  Marshall, 
who  in  more^than  one  case,  advances  the  same  opinion  ;  and 
the  question  was  finally  put  to  rest  by  the  decision  of  the  Supreme 
Court,  in  United  States  vs.  Hudson,*  in  which  there  appears  to  be 
no  dissent  from  the  opinion  delivered  by  the  Court,  that  a  common 
law  offence,  not  specified  by  statute,  is  not  indictable  in  the  federal 
courts.f 

It  was  while  the  Chief-Justice  and  Judge  Iredell,  with  the  District 
Judge  of  Virginia,  were  holding  the  Circuit  Court  at  Richmond,  in 
1193,  that  the  great  case  of  Ware,  Administrator,  vs.  Hylton  and 
others,  relative  to  the  right  of  British  creditors  to  collect  debts  of 
American  citizens,  contracted  before  the  war,  came  on  for  trial. 
This  case  called  out  a  display  of  forensic  talent,  eloquence  and  learn- 
ing, that  hitherto  had  been  without  a  parallel  in  the  courts  of  Vir- 
ginia, and  placed  the  bar  of  that  State,  in  the  opinion  of  the  federal 
judges,  according  to  Mr.  "Wirt's  account,  ahead  of  all  others  in  the 
Union.  The  cause  was  originally  tried  in  1791,  and  was  now 
brought  on  a  second  time  before  the  Chief-Justice  and  his  associates. 
Among  the  array  of  counsel  for  the  defendants,  the  American  debt- 
ors, were  Patrick  Henry  and  John  Marshall.  Mr.  Wirt,  in  his  life 
of  Henry,  gives  a  very  graphic  and  animated  description  of  this 
celebrated  trial,  and  a  copious  sketch  of  the  speech  of  the  great 
Virginian  orator,  which  is  said  to  have  required  three  days  for  its 
delivery.  He  was  followed  by  Marshall,  who  brought  the  heavy 
batteries  of  his  logic  to  bear  upon  the  breach  made  by  the  powerful 

the  indictment  cannot  be  maintained ! "  The  question,  it  was  supposed,  had  been 
long  since  put  at  rest,  and  beyond  all  hopes  of  a  resurrection  at  the  hands  of  the 
"  metaphysical  Virginia  lawyers,"  as  they  were  called  by  an  eminent  Federalist 
of  that  day. 

*  7  Cranch  Rep.  32.    See  also  U.  S.  vs.  Coolidge,  1  Wbeaton,  415. 

f  The  principle  is  considered  too  well  settled  to  be  again  shaken.  Justice  Mc- 
Lean in  his  late  opinion  in  the  Wheeling  Bridge  case,  says :  "It  is  admitted  that 
the  federal  courts  have  no  jurisdiction  of  common  law  offences."  And  Chief- 
Justice  Taney,  in  his  dissenting  opinion  says :  "  It  has  been  settled  since  the  be- 
ginning of  this  government,  that  the  courts  of  the  United  States,  as  such  have  no 
common  law  jurisdiction,  civil  or  criminal,  unless  conferred  upon  them  by  act  of 
Congress."— State  of  Pennsylvania  vs.  Wheeling  Bridge  Co.,  13  Howard,  519. 


JOHN  JAY.  (ft 

eloquence  of  his  associate.  Alexander  Campbell  and  Col.  Innis, 
two  of  the  most  distinguished  orators  at  the  bar  of  Virginia,  took  the 
floor  on  the  same  side — and  the  counsel  for  the  plaintiff  followed  in 
reply.*  Some  idea  of  the  effect  of  this  magnificent  exhibition  of  for- 
ensic skill,  this  grand  and  imposing  display  of  eloquence,  may  be  ob- 
tained from  the  impression  left  upon  the  mind  of  Judge  Iredell,  Who 
in  his  written  opinion,  after  the  argument,  declares  with  more  warmth 
and  enthusiasm  than  usually  belongs  to  the  unimpassioned  jadicial 
mind,  that  the  arguments  in  the  case  displayed  an  ingenuity,  a  depth 
of  investigation,  and  a  power  of  reasoning,  equal  to  anything  he  ever 
witnessed,  and  that  some  of  them  had  been  "  adorned  witka  splendor 
of  eloquence  surpassing  what  I  have  ever  felt  before."f 

Chief-Justice  Jay  presided  for  the  last  time  at  the  term  of  the  Su- 
preme Court,  in  February,  1194.  It  was  at  this  term  that  the  issue 
in  the  case  of  Georgia  vs.  Braislford,  which  I  have  already  alluded 
to,  was  tried.  At  the  same  term  the  case  of  Glass  vs.  The  Sloop 
Betsey,!  presenting  one  of  the  earliest  questions  raised  in  the  Su- 
preme Court  on  the  subject  of  admiralty  jurisdiction,  was  argued 
and  decided.  The  Betsey  was  a  Swedish  vessel,  the  cargo  of 
which  was  owned  jointly  by  Americans  and  Swedes.  She  had  been 
captured  by  the  "  Citizen  Genet,"  a  French  privateer,  and  sent  into 
Baltimore.  The  owners  of  the  Betsey  filed  a  libel  in  the  District 
Court  of  Maryland,  claiming  restitution,  and  the  captors  (who  had 
undertaken  to  proceed  before  the  French  Consul  for  a  condemnation 
of  the  vessel)  pleaded  to  the  jurisdiction,  that  the  federal  courts  had 
no  power  to  take  cognizance  in  the  case  of  a  captured  vessel,  belong- 
ing to  a  foreign  and  neutral  power.  After  an  elaborate  and 
exhausting  argument,  Chief-Justice  Jay  delivered  the  unanimous 
decision  of  the  court,  wherein,  without  assigning  any  reasons,  he 
overruled  the  plea  as  insufficient,  and  reversed  the  decision  of  the 
District  Court.  In  respect  to  the  admiralty  jurisdiction  claimed  to 
be  exercised  within  the  limits  of  the  United  States  by  the  consuls 
of  France,  it  was  determined  by  the  court  that  no  such  power  could 
be  exercised,  inasmuch  as  none  was  reserved  or  conferred  upon  these 

*  Sec  notice  of  this  trial  in  the  following  sketch  of  Chief-Justice  Marshall, 
f  See  opinion  of  Judge  Iredeli  in  the  Report,  3  Dallas,  275. 
J  3  Dallas  Rep.  6. 


62  LIVES  OF    THE  CHIEF-JUSTICES. 

functionaries  by  the  treaty.  This  important  case  established  the  ad- 
miralty jurisdiction  of  the  federal  courts  in  cases  of  prize  and  captures 
on  the  high  seas. 

At  the  expiration  of  this  term  of  the  court,  Judge  Jay,  as  has  been 
mentioned,  presided  at  the  April  session  of  the  Circuit  Court  at  Phila- 
delphia, and  it  was  during  this  session  that  Ravara  was  tried.  About  the 
same  time  he  was  commissioned  as  Minister  to  England,  and  although 
he  accepted  this  appointment  without  vacating  his  seat  on  the  bench,  yet 
he  never  afterwards  acted  in  a  judicial  capacity.  On  his  return  to 
America,  in  It 95,  having  in  the  mean  time  been  elected  Governor  of 
New  Yorkr  he  resigned  the  office  of  Chief-Justice  of  the  United 
States. 

No  portion  of  the  public  career  of  Mr.  Jay  has  been  the  subject  of 
more  unsparing  criticism,  than  that  upon  which  he  was  now  about  to 
enter.  A  full  history  of  it  involves  the  discussion  of  political  questions, 
happily  long  since  laid  at  rest,  and  revives  the  memories  of  party  con- 
troversies, which  for  animosity  and  bitterness  of  feeling,  have  never 
been  surpassed  in  this  country  or  Europe.  Such  a  review  would  be 
fruitless  and  unprofitable.  Without  entering  upon  it  in  detail,  there- 
fore, I  shall  allude  to  these  events  only  so  far  as  may  be  necessary,  ill 
order  to  trace  the  history  of  the  mission  to  England,  and  to  sketch, 
briely,  the  part  sustained  in  it  by  Judge  Jay. 

On  the  execution  of  Louis  XVI.,  England  joined  the  European 
coalition,  and  commenced  hostilities  against  the  French  republic. 
Up  to  this  period,  and  even  long  afterwards,  and  as  late  as  the  over- 
throw of  the  republic  by  Bonaparte,  the  popular  feeling  in  America 
was  warmly  enlisted  on  the  side  of  France,  and  the  prominent 
republican  leaders  did  not  hesitate  to  express  their  sympathy  with 
the  progress  of  popular  principles  in  Europe.*  A  class  of  public  men 
in  America,  however,  like  Mr.  Pitt,  Mr.  Burke,  and  their  adherents 
in  England,  never  could  be  brought  to  regard  with  satisfaction  the 
rapid  progress  of  the  democratic  principle  in  Europe,  as  developed 
in  the  startling  drama  of  the  French  Revolution.  At  the  head  of 

*  At  a  public  dinner  in  New  York,  in  1796,  Chancellor  Livingston  gave  the 
following  toast : 

"May  the  present  coolness  between  France  and  America  produce,  like  the 
quarrels  of  lovers,  a  renewal  of  love." 


JOHN  JAY.  63 

these  stood  the  acknowledged  chiefs  of  the  Federal  party,  Hamilton, 
Adams,  and  Gouverneur  Morris,*  and  with  these,  doubtless,  Jay 
concurred  in  sentiment  on  this  subject.  So  strong  was  this  bias 
against  the  French  Revolution  on  the  mind  of  Hamilton,  that  with 
all  his  clear,  far-seeing  sagacity,  and  practical  statesmanship,  he 
doubted  whether  it  would  be  proper  for  the  United  States  to  receive 
a  minister  from  the  French  republic,  or  whether,  if  a  regent,  pre- 
tending to  represent  the  monarchy  beyond  the  boundaries  of  France, 
should  send  a  rival  ambassador,  the  United  States  ought  not  to 
receive  loth!  This  grave  doubt  Hamilton  proposes  in  a  letter  to 
Jay,  but  the  question  did  not  for  a  moment  perplex  the  latter.  The 
Chief-Justice  entertained  a  too  clear  and  just  conception  of  interna- 
tional law,  and  of  the  principles  which  should  regulate  the  inter- 
course of  nations,  to  hesitate  for  a  moment,  and  he  accordingly 
advises  against  receiving  "  any  minister  from  a  regent,  until  he  was 
regent  defado."^ 

The  arrival  of  Genet  in  America,  as  minister  from  the  French 
republic,  and  the  imprudent  and  exceptionable  conduct  of  that  per- 
sonage, contributed  to  fan  the  flames  of  party  spirit,  and  to  open 
wider  the  breaches  between  the  Republicans  and  the  Federalists. 
Washington  held  with  a  firm  and  steady  hand  the  reins  between  the 
two  factions,  turning  neither  to  the  right  hand  nor  to  the  left,  but 

*  The  journal  of  Gouverneur  Morris — au  acute  observer,  as  well  as  an  accom- 
plished gentleman — during  his  stay  in  Paris,  exhibits  his  strong  conservative,  per- 
haps we  may  say,  monarchical,  sentiments.  Mr.  Morris  had  no  faith  in  the 
revolution  from  the  outset.  He  sided  with  the  King,  on  all  occasions,  against  the 
liberals.  He  sneered  at  Sieyes,  disputed  constantly,  and  always  warmly,  with 
that  "  strong-minded  woman,"  Madame  De  Stael,  in  her  own  drawing-rooms,  and 
almost  quarrelled  with  Lafayette  at  his  own  dinner  table.  Mr.  Morris  denounced 
the  Constitution  of  1791  as  "a  wretched  piece  of  paper" — the  same  Constitution 
which  Lafayette  regarded  as  the  perfection  of  wisdom,  and  that  liberal  and  en- 
lightened British  statesman,  Mr.  Fox,  pronounced  "the  most  stupendous  and 
glorious  edifice  of  liberty  which  has  been  erected  on  the  foundation  of  human 
integrity,  in  any  age  or  country." 

f  When  this  question  was  submitted  by  Washington  to  his  Cabinet,  Hamilton 
and  General  Knox  thought  that  the  French  minister  ought  to  be  received  with 
qualifications.  The  sound  judgment  of  the  President,  however,  acceded  to  the 
reasoning  of  Mr.  Jefferson,  with  whom  the  Attorney-General,  Randolph,  agreed 
that  the  French  Minister  should  be  received  without  any  qualifications. 


64  LIVES  OF  THE  CHJEFJUSTICES. 

rigidly  and  impartially  adhering  to  the  principles  of  neutrality  which 
he  had  proclaimed,  with  the  unanimous  advice  and  assent  of  his 
Cabinet,  including  Jefferson  himself.  It  was  a  position  of  no  ordi- 
nary embarrassment  and  difficulty.  The  Republicans  were  loud  and 
earnest  in  expressing  their  sympathy  for  republican  principles  in 
Europe,  and  their  desire  for  a  closer  union  with  France  against  the 
natural  enemies  of  liberty  ;  the  Federalists  were  no  less  earnest,  nay 
were  bitter  and  vindictive,  in  their  denunciations  of  jacobinism  and 
"French  principles."  On  the  one  hand  the  British  minister,  Mr. 
Hammond,  uttered  the  complaints  of  his  Government  against  the 
United  States  for  discriminating  against  British  subjects  and  British 
interests,  in  violation  of  treaty  stipulations  ;  on  the  other,  the 
republican  envoy,  Genet,  reproached  the  public  authorities  for  the 
ingratitude  of  America,  and  threatened  to  appeal  from  the  Govern- 
ment to  the  people. 

The  conduct  of  England  was  such,  indeed,  as  to  cause  deep  and 
wide-spread  indignation  among  all  classes  of  our  citizens.  England 
had  never  yet  carried  out,  either  according  to  its  spirit  or  its  letter, 
the  treaty  of  peace.  British  troops  still  garrisoned  several  posts  on 
our  frontiers,  and  within  the  jurisdiction  of  the  United  States. 
American  citizens  were  excluded  from  navigating  the  great  lakes  ; 
and  Great  Britain  had  neglected  to  make  compensation  for  negroes 
carried  away  by  the  British  fleet,  after  the  war.*  These  violations 
of  the  treaty  of  peace  were  admitted  by  Great  Britain,  but  justified 
on  the  ground  that  the  United  States  had  not  fulfilled  her  engage- 
ments under  the  same  treaty — a  charge  specifically  made  and  urged 
at  length  by  Mr.  Hammond,  the  British  minister,  but  triumphantly 
answered  and  conclusively  refuted,  in  a  very  elaborate  and  most 
able  communication  from  Mr.  Jefferson,  the  American  Secretary  of 
State.f 

Other  causes  of  difference,  and  grievances  growing  out  of  the 
belligerent  attitude  of  England  towards  France,  served,  soon  after,  to 
widen  the  breach  between  her  and  this  country.  Under  the  British 
Orders  in  Council,  the  last  of  which  authorized  the  capture  by  Brit- 

*  Letter  of  Mr.  Jefferson,  Secretary  of  State,  to  Mr.  Hammond,  the  British 
minister,  Dec.  15th,  1791,  American  State  Papers,  Vol.  I.  p.  179. 
t  See  this  correspondence  in  Vol.  I.  American  State  Papers. 


JOHN  JAY.  (J5 

ish  cruisers  of  all  vessels  carrying  supplies  to  any  French  colony,  or 
laden  with  its  produce,  numerous  American  vessels  were  seized  and 
sent  to  England  for  "  legal  adjudication."  The  right  of  search  was 
claimed,  and  American  sailors  were  torn  from  the  decks  of  American 
vessels,  under  pretence  of  their  being  British  subjects.  These  and 
other  outrages  committed  upon  our  commerce  and  maritime  rights, 
for  some  time  previous  to  the  spring  of  1194,  justly  excited  the 
indignation  of  the  popular  party,  who  loudly  demanded  of  Congress 
the  adoption  of  vigorous  and  energetic  war  measures.  It  required 
all  the  firmness  and  prudence  of  Washington,  barely  sustained  in  the 
Senate,  and  with  a  small  majority  against  the  Federal  policy  in  the 
lower  house,  to  stem  the  current  of  popular  passion,  and  avert  the 
threatened  storm.  The  excitement  of  party  gradually  reached  such 
a  point  as  to  overstep  the  bounds  of  propriety,  and  even  decency ; 
and  the  clamors  of  mob  violence  invaded  the  habitation  of  the 
President  himself.  According  to  the  statements,  perhaps  too  highly 
colored,  of  Mr.  Adams,  "innumerable  multitudes"  surrounded  the 
President's  house  from  day  to  day,  "  hurraing,  demanding  war  with 
England,  cursing  Washington,  and  crying  success  to  the  French 
patriots  and  virtuous  republicans."* 

The  Democratic  party  in  Congress  were  in  favor  of  prompt  and 
immediate  action  against  England,  looking  mainly  toward  commer- 
cial restriction.  Steps  were  taken  to  increase  the  military  force ; 
an  embargo  was  laid  for  thirty  days  on  all  vessels  bound  to  foreign 
ports  ;  and  a  resolution  was  introduced  to  suspend  commercial  inter- 
course with  Great  Britian  till  indemnity  should  be  made  for  the 
losses  sustained  under  her  orders  in  council,  and  until  she  surrendered 
the  military  posts  agreeably  to  the  treaty  of  peace. 

It  was  at  this  moment,  when  the  public  mind  was  in  the  highest 
state  of  ferment,  and  a  speedy  rupture  seemed  inevitable,  that  Wash- 
ington determined  to  make  another  effort  to  reconcile  the  differences 
between  the  two  countries,  and  preserve  peace.  He  resolved  upon 
sending  a  special  envoy  to  England,  and  he  selected  for  that  pur- 
pose the  Chief-Justice  of  the  United  States.  As  in  the  case  of  the 

*  The  "  innumerable  multitudes "  of  Mr.  Adams  have  been  discredited,  on 
good  authority.    Perhaps  the  rest  of  the  statement  is  also  to  be  taken  with  con- 
siderable abatement 
5 


66  LIVES  OF  THE  CHIEF-JUSTICES. 

Spanish  mission,  the  appointment  was  one  in  no  way  to  be  coveted 
or  desired,  and  indeed  was  repugnant  to  all  Mr.  Jay's  ideas  of  per- 
sonal convenience.  But  in  this  as  in  almost  every  act  of  his  public 
life,  he  demonstrated  that  his  conduct  was  governed  by  a  high  and 
exalted  sense  of  duty,  and  not  by  mere  personal  considerations  ;  and 
the  rule  of  action  which  he  had  marked  out  for  himself  did  not  suffer 
him  to  shun  the  responsibility  or  dech'ne  the  appointment.  "  There 
is  here,"  he  remarks  in  a  letter  to  Mrs.  Jay,  on  the  15th  April,  1794, 
"  a  serious  determination  to  send  me  to  England,  if  possible  to  avert 
a  war.  The  object  is  so  interesting  to  our  country,  and  the  combi- 
nation of  circumstances  such,  that  I  find  myself  in  a  dilemma  be- 
tween personal  considerations  and  public  ones."  And  again,  a  few 
days  after,  "So  far  as  I  am  personally  concerned,  my  feelings  are 
very  far  from  exciting  wishes  for  its  taking  place.  No  appointment 
ever  operated  more  unpleasantly  upon  me  ;  but  the  public  conside- 
rations which  were  urged,  and  the  manner  in  which  it  was  pressed, 
strongly  impressed  me  with  a  conviction  that  to  refuse  it  would  be 
to  desert  my  duty  for  the  sake  of  my  ease  and  domestic  concerns 
and  comfort." 

The  Chief-Justice  was  at  this  time  holding  the  Circuit  Court  at 
Philadelphia.  The  nomination  was  sent  in,  and  acted  upon  by  the 
Senate,  on  the  19th  April,  1794.  It  appears  that  the  object  of  the 
mission  was  distasteful  to  the  party  in  opposition  in  the  Senate. 
Some  of  the  members,  among  whom  was  Mr.  Burr,  refused  to  sanc- 
tion it,  on  personal  grounds,  alleging  the  impropriety  of  the  nomina- 
tion itself.  It  was,  however,  confirmed  by  a  decisive  vote,  18  to  8. 
Two  days  afterwards  the  House  passed  a  bill,  prohibiting,  at  the 
end  of  a  limited  period,  the  importation  of  articles  of  British  growth 
or  manufacture  into  the  United  States — a  bill  that  of  course  would 
have  rendered  Mr.  Jay's '  mission  nugatory.  Its  passage  in  the 
Senate  was  only  prevented  by  the  casting  vote  of  the  Yice-President. 

Within  a  month  after  his  appointment  Mr.  Jay  sailed  from  New 
York,  accompanied  by  his  son,  and  Col.  Trumbell,  as  Secretary  of 
Legation.  Coming  as  the  envoy  of  the  peace  party  in  the  United 
States,  and  charged  directly  to  negotiate  a  treaty  between  the  two 
countries,  he  was  of  course  received  with  every  proper  mark  of 
respect  and  attention.  His  negotiations  and  intercourse  with  Lord 


JOHN  JAY.  67 

Grenville,  the  Secretary  of  Foreign  Affairs,  were  of  the  most  friendly 
and  agreeable  character  ;  and  so  far  as  appears,  tended  to  create  in 
each  a  mutual  respect  for  the  other.  With  this  gentleman,  mostly 
in  friendly  and  unreserved  intercourse,  and  by  oral  communication, 
Mr.  Jay  negotiated  and  finally  settled  upon  the  terms  of  that  cele- 
brated treaty,  the  promulgation  of  which  in  the  United  States 
brought  down  upon  the  head  of  its  author  such  a  tempest  of  popular 
indignation. 

The  terms  of  this  treaty,  and  the  policy  or  impolicy  of  its  ratifica- 
tion, were  fully  discussed  at  that  day,  and  with  great  vigor  of  argu- 
ment. Indeed  it  became  for  a  time  the  dividing  line  of  political 
sentiment,  upon  which  those  two  distinguished  leaders,  Jefferson  and 
Hamilton,  representing  the  rival  political  parties  of  the  country, 
irrevocably  separated.  Hamilton,  with  his  accustomed  ardor,  ably 
defended  the  treaty  in  some  papers  under  the  signature  of  '  Curtius ' 
and  '  Camillus.'  Jefferson,  in  a  letter  to  Governor  Rutledge  of  South 
Carolina,  pronounced  it  an  "  execrable  thing,"  and  nothing  more 
than  "  a  treaty  of  alliance  between  England  and  the  Anglo-men  of 
this  country,  against  the  Legislature  and  the  people."  In  a  letter 
to  Madison,  he  says,  alluding  to  Hamilton's  pamphlet :  "  Hamilton 
is  really  a  Colossus  to  the  anti-republican  party  ; — without  numbers, 
he  is  a  host  in  himself."  *  *  *  "In  truth  when  he  comes  for- 
ward there  is  nobody  but  yourself  who  can  meet  him."  *  *  *  * 
"  For  God's  sake  take  up  your  pen  and  give  a  fundamental  reply  to 
'  Curtius '  and  '  Camillus.' "  This  Mr.  Madison  did,  and  very  ably  re- 
plied to  the  argument  of  Hamilton. 

As  to  the  merits  of  the  treaty  itself,  very  few,  I  believe,  at  this 
day,  will  undertake  to  defend  it  on  principle,  whatever  may  be 
said  of  it  on  the  score  of  policy.  Mr.  Jay  declares,  and  doubt- 
less with  truth,  that  it  was  based  upon  the  very  best  terms  that 
could  have  been  obtained ;  yet  Washington  himself  hesitated  to 
give  it  his  approval,  and  it  was  only  by  a  close  vote  that  it  es- 
caped the  ordeal  of  the  Senate.  As  a  commercial  treaty  the 
advantages  were  altogether  on  the  side  of  Great  Britain,  There 
was  no  reciprocity  in  it.*  It  was  a  treaty  between  a  strong  and  a 

*  In  this  respect  it  compares  very  unfavorably  with  the  treaty  with  France 
subsequently  negotiated  by  Ellsworth  and  his  associates,  which  Hamilton  and 
some  of  the  Federalists  severely  censured.  See  subsequent  sketch  of  Ellsworth. 


68  LIVES  OF  THE  CHIEF-JUSTICES. 

weak  power,  where  the  former  insisted  upon  much  and  yielded  little, 
and  where  the  latter  agreed  to  receive  that  little  in  order  to  pur- 
chase the  boon  of  future  peace  and  security.  Great  Britain,  it  is 
true,  agreed  to  surrender  the  military  posts,  but  this  she  was  already 
bound  to  do  by  the  treaty  of  peace  twelve  years  before  ;  she  also 
agreed  to  pay  for  property  which  her  subjects  had  illegally  captured, 
after  a  failure  to  recover  of  the  captors  in  due  course  of  law.  But 
with  the  exception  of  these  two  points,  she  yielded  little  or  nothing 
that  it  was  an  object  to  her  to  retain.  The  treaty  did  not  even 
settle  existing  disputes,  for  while  providing  for  the  more  easy  and 
certain  collection  of  British  debts  in  the  United  States,  it  gave  no 
indemnification  for  the  negroes  carried  away  by  the  British  troops 
at  the  close  of  the  war  ;  nor  did  it  contain  any  concessions  in  regard 
to  the  right  of  search  and  privateering  claimed  and  exercised  by 
British  armed  vessels  on  the  high  seas. 

Mr.  Jay  had  been  instructed  by  his  government  to  procure  a 
direct  trade  with  the  West  Indies  in  our  own  vessels,  "  of  certain 
defined  burdens."  The  part  of  the  treaty  which  was  negotiated 
under  these  instructions,  is  perhaps  the  most  objectionable,  and  in- 
deed was  most  warmly  attacked  at  the  tune.  The  manner  in 
which  they  were  carried  out  seems  scarcely  reconcilable  with 
their  spirit,  even  if  it  actually  came  up  to  the  letter.  True,  the 
treaty  did  provide  that  England  should  open  these  ports,  but  only 
to  vessels,  or,  as  a  member  of  the  House  of  Representatives*  ex- 

*  Mr.  Lyman.  In  the  debate  oil  the  treaty  in  the  House  of  Representatives, 
alluding  to  its  want  of  reciprocity,  he  remarks :  "In  Europe  we  are  told  we  may 
freely  enter  her  (Great  Britain's)  ports.  In  the  West  Indies  we  are  to  sail  in 
canoes  of  seventy  tons  burthen.  In  the  East  Indies  we  are  not  to  settle  or  reside 
without  leave  of  the  local  government.  In  the  sea  ports  of  Canada  and  Nova 
Scotia  we  are  not  to  be  admitted  at  all,  while  all  our  rivers  and  countries  are 
opened  without  the  least  reserve.  Yet  surely  our  all  was  as  dear  to  us  as  the  all 
of  any  other  nation,  and  ought  not  to  have  been  parted  with  but  on  equivalent 
terms." 

Mr.  Madison  spoke  in  opposition  to  the  treaty  in  the  same  debate.  He  took 
particular  exceptions  to  that  portion  of  it  which  permitted  aliens  to  hold  lands  in 
perpetuity.  Other  portions  of  the  treaty  he  found  equally  objectionable.  "  With 
respect  to  the  great  points  in  the  law  of  nations  comprehended  in  the  stipulations 
of  the  treaty,"  he  remarks,  "  the  same  want  of  real  reciprocity,  and  the  same 
sacrifice  of  the  interests  of  the  United  States  are  conspicuous." 


JOHN  JAY.  69 

pressed  it,  "  canoes"  of  the  burthen  of  seventy  tons  ; — and  as  a  re- 
striction upon  this  slight  relaxation  of  the  British  colonial  system, 
and  perhaps  as  an  equivalent  for  it,  the  American  minister  consented 
to  insert  the  stipulation  that  all  cargoes  taken  in  such  vessels  should 
be  landed  in  the  United  States  ;  and  further  that  the  United  States 
should  ship  no  molasses,  sugar,  coffee,  cocoa,  or  cotton  to  any  other 
part  of  the  world  1  It  may  seem  surprising  at  thiji  day  that  so 
shrewd  and  able  a  negotiator  as  Chief-Justice  Jay  should  have  con- 
sented,, under  any  circumstances,  and  in  view  of  any  possible  conse- 
quences, to  accede  to  such  humiliating  restrictions.  The  explana- 
tion is  to  be  found  in  two  facts :  First,  that  a  weak  power  always 
treats  under  disadvantageous  terms  with  a  strong  one.  Second,  the 
disadvantage  in  the  present  case  was  increased  because  the  negotia- 
tor was  known  to  the  British  minister  to  be  ardently  desirous  of 
procuring  peace,  and  the  friendship  and  good  will  of  Great  Britain. 
On  the  latter  point  the  remarks  of  Prof.  Tucker,  in  his  Life  of  Jef- 
ferson,* are  so  discriminating  and  just,  that  no  apology  is  necessary 
in  presenting  the  reader  with  the  following  passage.  While  award- 
ing to  the  distinguished  negotiator  of  the  treaty,  in  the  execution 
of  his  trust,  the  highest  talents  as  well  as  zeal  and  patriotism,  Prof. 
Tucker  remarks  :  "  But  the  misfortune  was,  that  Mr.  Jay  left  the 
United  States  under  the  firm  belief,  generally  entertained  by  his 
party,  that  peace  with  England,  the  prevention  of  a  closer  fraternity 
with  the  French,  and  the  continued  ascendancy  of  the  Federalists, 
all  depended  on  his  making  a  treaty.  Every  thing  then  which  could 
interest  either  his  patriotic  or  party  feelings,  (and  neither  were  luke- 
warm,) was  hazarded  on  this  single  step.  The  moral  necessity  under 
which  he  acted  was  as  well  known  to  the  British  ministry,  as  it  was 
felt  by  himself ;  and  they  naturally  profited  by  it  to  insist  on  every 
thing  which  he  could  venture  to  give,  and  to  concede  nothing  which 
they  could  decently  refuse." 

Without  entering  upon  a  further  review  or  criticism  of  this  cele- 
brated treaty,  I  dismiss  the  subject  with  the  single  remark,  that 
containing  such  a  provision  as  that  in  regard  to  the  West  India 
trade,  and  securing  peace  and  friendship  wilh  England  without  cor- 
responding reciprocal  commercial  advantages,  it  is  not  at  all  remark- 

*  Life  of  Jefferson,  vol.  I.  page  507. 


T'Q  LIVES  OF   THE  CHIEF-JUSTICES. 

able  that  the  treaty  should  have  been  exceedingly  distasteful  to  the 
republican  party.  Nor  is  it  a  matter  of  surprise  that  such  men  at 
the  south  as  Pinckney  and  Rutledge  should  have  denounced  it  in 
unmeasured  terms  ;  that  Madison  should  have  censured  it  in  the 
strongest  language  on  the  floor  of  the  House  of  Representatives  ; 
and  that  Jefferson  himself,  should  for  the  moment  have  been  ruf- 
fled in  the  serenity  of  his  philosophic  temper,  and  even  have  forgot- 
ten the  ordinary  courtesies  of  language,  in  giving  expression  to  his 
dissatisfaction.* 

A  few  days  after  Jay's  arrival  in  America,  the  Senate  assembled, 
and  the  treaty  was  submitted  by  the  President.  On  the  24th  of 
June  the  Senate  advised  the  ratification  of  the  treaty,  except  the 
article  relating  to  the  West  India  trade.  Soon  after,  and  while  its 
consideration  was  still  before  the  Senate,  it  was  made  public  by  a 
senator  from  Virginia.f  At  once  the  public  was  in  a  blaze  of  ex- 
citement, or,  to  use  the  language  of  the  biographer  of  Mr.  Jay,  the 
torch  was  applied  to  that  mass  of  combustibles  which  had  long  been 
collecting,  and  the  intended  explosion  instantly  followed.  In  a  free 
country  no  one  has  a  right  to  object  to  the  free  and  unrestrained 
expression  of  public  opinion  ; — but  at  the  same  time,  while  the  peo- 
ple have  a  right  to  make  known  their  sentiments  without  reserve  in 
regard  to  public  men  and  public  measures,  this  liberty  ought  not  to 
be  abused,  or  be  suffered  to  degenerate  into  licentiousness.  On  this 
occasion,  though  unquestionably  much  might  be  excused  to  the  in- 
tensity of  public  feeling,  yet  no  one  will  undertake  to  justify  the 
violence  of  language  and  action  employed  by  some  of  those  who  de- 
nounced the  treaty.  It  was  doubtless  unpopular.  It  was  such  as  a 
large  portion  of  the  people  of  the  country  did  not  and  could  not  ap- 
prove. But  to  look  beyond  the  treaty  itself,  and  attack  the  char- 
acter and  motives  of  the  negotiator,  was  both  illiberal  and  unjust. 
Some  few  even  of  the  Democratic  societies,  transcended  the  bounds 
of  decency  as  well  as  propriety,  and  talked  of  the  GUILLOTINE,  and 
of  bringing  JOHN  JAY  to  trial  and  justice  ; — while  the  mob  did  not 
hesitate,  in  following  the  example,  to  parade  the  effigy  of  Jay  through 

*  In  one  of  his  letters  Jefferson  calls  the  negotiator  of  the  treaty  a  rogue  of  a 
pfk  t,  who  had  run  the  vessel  of  state  into  an  enemy's  port 
•f  -James  T.  Mason. 


JOHN  JAY.  71 

the  streets,  labelled,  "  Come  up  to  my  price,  and  I  will  sell  you  my 
country  ;"  and  publicly  to  burn  the  obnoxious  treaty  in  front  of  his 
own  house.*  These  details,  however,  are  not  necessary  to  be  dwelt 
upon,  and  it  is  gratifying  to  know  that  such  proceedings  were  nei- 
ther shared  in,  nor  approved,  by  temperate  and  intelligent  political 
opponents,  nor  by  the  great  mass  of  the  Republican  party. 

Washington  deliberated  carefully  and  hesitated  a  long  time  be- 
fore he  signed  the  treaty.  His  habitual  prudence,  and  his  earnest 
desire  to  preserve  the  peace  of  the  country,  finally  overcame  his 
scruples  and  determined  his  conduct  ;  and  on  the  15th  August, 
1795,  he  gave  it  his  official  sanction,  and  it  thus  became  the  law  of 
the  land.  The  treaty,  however,  had  still  a  narrow  escape  in  the 
House  of  Representatives  the  following  spring,  on  the  question  of 
passing  the  laws  necessary  to  carry  it  into  effect.  The  sum  of 
$90,000  was  to  be  appropriated  for  this  purpose,  and  a  determined 
opposition  was  manifested.  On  a  question  taken  in  the  House,  it 
was  found  that  the  vote  was  equally  divided,  and  the  chairman, 
though  opposed  to  the  treaty,  gave  his  casting  vote  in  favor  of  its 
execution.  Soon  after  the  necessary  laws  were  passed,  and  the 
treaty  went  into  full  effect. 

It  has  already  been  mentioned  that  Chief-Justice  Jay  had  been 
elected  Governor  of  the  State  of  New  York  during  his  absence,  and 
had  been  put  in  nomination  without  even  his  knowledge  or  consent. 
Three  years  before,  while  still  holding  his  seat  on  the  bench  of  the 
Supreme  Court,  he  had  consented  to  be  put  in  nomination  for  this 
office  against  Governor  Clinton.  The  election  had  been  unusually 

*  It  is  but  simple  justice  to  say  that  the  commission  of  outrages  like  these  was 
not  confined  to  the  Republicans.  Similar  acts  were  perperatedg  by  the  other 
party.  Jefferson  was  subsequently  treated  in  the  same  manner  in  New  England ; 
and  during  the  absence  of  Mr.  Gerry  in  France,  his  unoflenging  wife  and  family 
were  subjected  to  unheard  of  insults.  "  On  several  occasions,"  says  Mr.  Austin, 
in  his  life  of  Gerry,  "  the  morning  sun  shone  upon  a  model  of  a  guillotine  erected 
in  the  field  before  her  windows,  smeared  with  blood,  and  having  the  effigy  of  a 
headless  man.  Savage  yells  were  uttered  in  the  night  time  to  disturb  the  sleep 
of  this  family  of  females,  and  the  glare  of  blazing  faggots  suddenly  broke  upon  its 
darkness  to  terrify  them  with  the  apprehensions  of  immediate  conflagration." 
— 2  Austin's  Life  of  Gerry.  267. 


72  LIVES  OP  THE  CHIEF-JUSTICES. 

close  and  animated.  Mr.  Jay  received  the  greatest  number  of  votes, 
but  owing  to  an  informality  iu  the  vote  of  the  counties  of  Otsego, 
Tioga,  and  Clinton,  these  ballots  had  been  rejected,  and  Mr.  Clinton 
was  declared  by  the  canvassers  duly  elected  Governor  by  a  majority 
of  108.  It  was  in  this  election  that  Mr.  Jay's  old  friend,  Chancellor 
Livingston,  left  the  ranks  of  the  Federal  party,  and  allied  himself 
to  the  Republicans,  assuming  an  attitude  of  decided  hostility  to  Mr. 
Jay's  election.  The  decision  of  the  canvassers  was  the  subject  of 
much  dissatisfaction  to  the  party  which  had  supported  Mr.  Jay, 
and  an  investigation  was  had  thereon  at  the  ensuing  session  of  the 
Legislature,  but  the  house  of  Assembly,  by  a  majority  of  only  four 
votes,  resolved  that  the  canvassers  had  not  conducted  themselves 
with  impropriety  in  the  execution  of  their  trust,  and  Mr.  Clinton 
accordingly  continued  to  discharge  the  duties  of  the  office.  These 
considerations  doubtless  influenced  the  party  which  had  supported 
Mr.  Jay,  to  present  his  name  again  for  the  same  office,  and  that  too 
without  his  knowledge,  and  before  his  arrival  from  Europe.  Mr. 
Clinton  declined  a  re-election,  and  the  Chief-Justice,  Mr.  Yates,  was 
selected  as  the  opposing  candidate.  Jay  was  elected  by  a  large 
majority,  and  he  was  welcomed  by  his  friends  with  this  flattering 
announcement  on  his  arrival  at  New  York,  only  two  days  after  the 
result  had  been  officially  ascertained. 

The  author  of  the  Political  History  of  New  York  thinks,  and  per- 
haps very  correctly,  that  if  the  British  treaty  had  been  published 
on  the  1st  of  April  instead  of  the  1st  of  July,  Jay  could  not  have 
been  elected  Governor.  In  proof  of  this  assertion  he  alludes  to  the 
fact,  that  although  up  to  that  time  the  city  of  New  York  had  been 
almost  unanimously  Federal,  and  even  DE  WITT  CLINTON,  then  a 
youag  man  just  entering  public  life,  had  failed  of  an  election  to  the 
Legislature  at  the  time  of  Jay's  election,  yet  the  very  next  year 
EDWARD  LIVINGSTON,  a  decided  Republican,  was  elected  to  Congress 
from  that  city.  Be  this  as  it  may,  it  is  certain  that  Mr.  Jay  came 
into  office  with  a  very  flattering  popular  vote.  The  elections  had 
generally  been  in  favor  of  the  Federalists,  and  the  Governor  found 
himself  supported  by  a  decided  majority  in  both  branches  of  the 
Legislature.  The  late  venerable  Chief-Justice  AMBROSE  SPENCER, 
Clarum  et  venerabile  nomen,  was  the  same  year  elected  to  the 


JOHN  JAY.  73 

State  Senate.  Though  then  comparatively  a  young  man,  but  thirty 
years  of  age,  his  great  talents  were  known  and  appreciated,  and  he 
at  once  assumed  a  position  of  commanding  influence  in  support  of 
the  administration.  Besides  Mr.  Spencer,  the  Governor  found  him- 
self sustained  in  the  Senate  by  many  other  gentlemen  of  great  abil- 
ity and  influence,  among  whom  may  be  mentioned  Gen.  Schuyler, 
Mr.  Cruger,  and  Mr.  Ph.  Livingston. 

The  Legislature  convened  in  the  city  of  New  York  on,  the  6th  of 
January,  1796.  The  new  Governor,  as  was  usual  at  that  period, 
met  the  two  houses,  and  delivered  a  speech  at  the  opening  of  the 
session,  which  though  neat  and  appropriate,  contained  nothing  very 
striking  or  remarkable.  He  declared  his  determination  "  to  regard 
all  his  fellow-citizens  with  an  equal  eye,  and  to  cherish  and  advance 
merit,  wherever  found."  If  this  declaration  referred  to  the  dispens- 
ing of  executive  patronage,  it  was  a  declaration  which,  however  hon- 
estly intended,  was  not,  and  probably  could  not,  have  been  consis- 
tently carried  out.  Jay  had  been  elected  as  a  Federalist,  aiid 
opposed  by  the  Republicans,  and  his  fidelity  to  his  political  friends, 
it  is  believed,  has  never  been  questioned.  And  although,  in  those 
primitive  days,  offices  were  not  yet  regarded  as  the  "  spoils  of  vic- 
tory," and  removals  for  opinion  sake  were  comparatively  unknown, 
yet  when  an  office  had  become  vacant  by  resignation  or  otherwise, 
it  was  generally  filled  by  the  appointment  of  a  political  friend, 
rather  than  of  a  political  opponent.  The  course  of  Mr.  Jay  was  no 
exception  to  this  rule.  Indeed,  it  had  heretofore  been  made  a  cause 
of  perhaps  just  complaint  against  him  and  Generals  Hamilton  and 
Schuyler,  that,  through  their  controlling  influence  with  the  Presi- 
dent, most  of  the  appointments  under  the  Federal  Government  had 
been  made  from  the  ranks  of  the  political  opponents  of  Gov.  Clinton 
and  the  Republicans.  Nor  does  it  appear  that  Gov.  Jay  ever  urged 
upon  the  council  of  appointment  the  nomination  of  an  anti-Federalist 
to  office  on  the  ground  of  superior  merit  alone. 

The  answer  of  the  two  houses  to  the  Governor's  speech  was 
highly  laudatory,  going  even  beyond  the  bounds  of  ordinary  compli- 
ment. "The  evidence  of  ability,  integrity  and  patriotism,"  it  says, 
"  which  have  been  invariably  afforded  by  your  conduct  in  the  dis- 
charge of  the  variety  of  arduous  and  important  trusts,  authorize  us 


14;  LIVES  OF  THE  CHIEFJUSTICES. 

to  anticipate  an  administration  conducive  to  the  welfare  of  your 
constituents."  The  word  "  invariably "  was  not  contained  in  the 
original  draft.  It  was  inserted  by  the  Senate,  on  motion  of  Mr. 
Spencer,  by  a  vote  of  11  to  6,  "thus  repelling  in  unequivocal 
terms " — remarks  the  son  and  biographer  of  Mr.  Jay — "  the  calum- 
nies with  which  the  opposers  of  the  British  treaty  had  found  it  con- 
venient to  assail  the  minister  who  negociated  it."  Such,  no  doubt, 
was  the  object  of  Mr.  Spencer's  motion,  and  so  far  as  a  party  vote 
in  a  legislative  body  may  be  said  to  reflect  public  sentiment,  it  was 
successful.  It  may  be  thought  surprising  that  Mr.  Spencer  himself 
did  not  always  continue  to  yield  the  same  unqualified  approbation  to 
Mr.  Jay's  political  actions.  Before  the  close  of  the  next  guberna- 
torial term,  we  find  him  enrolled  with  the  Republicans,  and  in  con- 
nection with  De  Witt  Clinton  and  another  opposition  member  of  the 
Council,  sending  in  to  the  Assembly  a  paper,  in  which  the  character 
and  conduct  of  the  Governor  are  criticised  with  much  asperity. 
This  disagreement  grew  out  of  the  contest  between  the  Governor 
and  Messrs.  Clinton  and  Spencer,  then  in  opposition,  and  members 
of  the  council  of  appointment,  relative  to  the  right  of  nominations 
to  office — the  Governor  claiming  an  exclusive  right  of  nomination, 
and  the  council,  which  consisted  of  four  Senators,  three  of  whom 
were  in  opposition,  claiming  a  concurrent  right.* 

*  From  this  it  appears  that  notwithstanding  Gov.  Jay's  declaration  in  his  open- 
ing speech,  his  practice  was  uniformly  to  dispense  official  patronage  among  his 
political  friends.  Mr.  William  Jay,  in  his  memoirs  of  his  father,  does  not,  indeed, 
claim  that  the  Governor  ever  appointed  anti-Federalists  to  office,  but  regards  the 
fact  that  he  made  no  removals,  as  evidence  of  the  sincerity  of  his  intention  "  to 
dispense  his  patronage  for  the  good  of  the  whole,  and  not  of  his  friends."  The  ex- 
planation, it  must  be  confessed,  is  not  entirely  satisfactory.  It  ought  not,  certainly, 
to  be  claimed  as  a  peculiar  merit  in  Governor  Jay,  that  he  declined  to  make 
removals,  at  a  day  when — as  Mr.  Barnard  remarks  in  his  able  discourse  on  Chief- 
Justice  Spencer — removal  from  office  on  account  of  political  opinions,  was  un- 
known. Nor,  can  it  be  regarded  as  a  fulfilment  of  the  declaration  made  by  the 
Governor,  of  his  intention  to  "  advance  merit  wherever  found."  In  declining  to 
nrake  removals,  Gov.  Jay  is  entitled  to  no  more,  and  no  less,  credit  than  his  dis- 
tinguished opponent,  Gov.  Clinton,  who,  on  being  again  reinstated  in  office,  says 
Mr.  Barnard,  utterly  refused  to  give  the  practice  the  sanction  of  his  name,  and 
even  caused  his  solemn  protest  to  be  entered  on  the  journals  of  the  Council, 
against  some  of  the  removals. 


JOHN  JAY.  75 

It  was  during  this  year  that  the  purpose  of  Washington  to  decline 
a  re-election  and  to  retire  to  private  life,  became  known.  Jay  had 
been  one  of  his  warmest  personal  and  political  friends.  No  man  in  the 
State  of  New  York,  not  even  Hamilton,  enjoyed  in  a  higher  degree 
the  esteem  and  confidence  of  the  first  President.  In  his  annual 
speech  to  the  Legislature,  at  their  meeting  in  November,  1796,  the 
Governor,  alluding  to  the  fact  of  Washington's  purpose  to  retire 
from  public  life,  delivered  a  very  beautiful  eulogium  upon  the  charac- 
ter of  that  great  and  good  man.  It  may  here  be  mentioned  as  an 
instance  of  the  friendship  and  unreserved  confidence  existing  between 
them,  that  General  Washington  submitted  to  Jay  and  Hamilton  the 
draft  of  his  celebrated  farewell  address,  for  revision  and  approval. 
The  subject  has  excited  some  attention,  from  the  fact  of  a  copy  of 
this  address  having  been  found  in  the  hand-writing  of  General  Hamil- 
ton, from  which  circumstance  its  authorship  was  attributed  to  him. 
Many  years  after,  Governor  Jay,  in  a  letter  to  a  friend,  explained  the 
circumstance  as  follows  :  Washington  sent  the  draft  to  Hamilton 
with  a  request  that  he  would  confer  with  Jay  on  the  subject,  and 
suggest  any  alterations  that  might  occur.  The  conference  took  place 
at  the  house  of  Jay.  Several  additions  and  modifications  were  pro- 
posed, and,  at  the  suggestion  of  Jay,  instead  of  interlining  and  muti- 
lating the  original  draft,  Hamilton  copied  it  entire,  incorporating  into 
it  the  proposed  alterations.  This  was  sent  to  General  Washington, 
Hamilton  probably  retaining  the  copy,  which  was  subsequently  found 
among  his  papers. 

The  vote  of  the  State  of  New  York,  at  this  Presidential  election, 
as  is  well  known,  was  cast  for  Adams  and  Pinckney,  for  President 
and  Yice-President  of  the  United  States.  That  remarkable  man, 
whose  name  has  become  a  sinister  omen  in  the  political  history  of 
the  country,  AARON  BURR,  was  sustained  by  the  Republicans  for  Yice- 
President,  with  Mr.  Jefferson  for  President.  Burr  was  then  a  mem- 
ber of  the  Senate  of  the  United  States.  His  term  of  service  expired 
in  the  spring  of  1797,  and  the  Legislature  being  strongly  Federal, 
General  Schuyler  was  elected  to  succeed  him.  Burr  returned  to  New 
York  and  immediately  offered  himself  as  a  candidate  for  member  of 
Assembly.  The  Republican  ticket  was  elected  in  the  city  by  about  a 
thousand  majority,  and  at  the  ensuing  session  Colonel  Burr  appeared 


76  LIVES  OF  THE  CHIEF-JUSTICES. 

in  the  Legislature  with  DE  WITT  CLINTON,*  as  one  of  his  colleagues 
from  New  York,  to  organize  a  vigorous  and  active  opposition  to  the 
administration  of  Governor  Jay. 

This  session  of  the  Legislature  commenced  at  the  city  of  Albany, 
on  the  2d  of  January,  1798.  The  speech  of  the  Governor  was  mild 
and  judicious,  avoiding  any  allusion  to  political  matters,  and  being 
confined  mainly  to  the  domestic  affairs  of  the  State.  It  was  well 
received  by  both  houses,  and  a  respectful  answer  returned.  Never- 
theless, a  vigorous  opposition  was  manifested  in  the  Legislature,  under 
the  lead  of  Burr  and  other  prominent  Republicans,  although  no  mea- 
sure of  any  great  political  importance  was  discussed,  except  the  bill 
to  abolish  slavery  in  the  State,  which  passed  the  Assembly,  but  was 
lost  in  the  Senate — a  bill,  it  must  be  added,  which  Governor  Jay 
warmly  approved. 

The  first  term  of  the  Governor  was  drawing  to  a  close.  The  elec- 
tion was  to  take  place  in  April,  of  this  year,  and  the  campaign  was 
carried  on  with  great  vigor  during  the  winter  session,  outside  as  well 
as  in  the  Legislature.  The  Republican  party  had  been  gradually 
gaining  strength,  and  was  directed  by  able  and  resolute  leaders.  It 
had  life,  activity,  energy,  character,  talent,  and  withal  the  popular 
sympathy  to  invigorate  and  sustain  it.  It  marshalled  itself  under 
the  lead  of  those  experienced  and  veteran  statesmen,  Chancellor 
Livingston  and  George  Clinton.  It  availed  itself  of  the  indefatigable 
exertions  of  that  able,  adroit,  clear-headed,  and  not  .over-scrupulous 
politician,  Aaron  Burr.  It  numbered  among  its  younger  members, 
such  men  as  Edward  Livingston,  whose  name  and  reputation  have 
since  become  national,  De  "Witt  Clinton,  whom  General  Hamilton,  it  is 
said,  at  one  time  thought  would  become  a  Federalist,  and  Ambrose 
Spencer,  who  had  just  enrolled  himself  in  the  Republican  ranks. 
With  such  an  array  of  influence,  energy,  and  talent  on  its  side,  the 
Republicans  might  well  hope  for  success ;  but  the  Federal  party  stood 
firm,  and  indeed  seemed  invincible  so  long  as  it  was  sustained  by  the 
exalted  character  and  wide-spread  personal  popularity  of  John  Jay, 
and  guided  by  the  colossal  intellect  of  Alexander  Hamilton. 

The  election  was  held  in  April.     Each  party  selected,  perhaps, 

*  This  was  the  first  appearance  of  De  "Witt  Clinton  in  public  life.  He  was  then 
about  28  years  of  age. 


JOHN  JAY.  77 

under  all  the  circumstances,  its  strongest  candidate.  The  Republi- 
cans supported  Chancellor  Livingston  ;  the  Federalists  again  rallied 
around  Gov.  Jay.  We  are  told  by  his  son  that  he  would  gladly 
have  retired  from  the  contest.  It  was  peculiarly  disagreeable  to  him 
to  have  for  a  rival  and  opponent,  his  old  friend  and  relative,  the 
Chancellor  ;  but,  remarks  Mr.  William  Jay,  "  his  fellow-citizens  still 
claimed  his  services,  and  he  resolved  not  to  abandon  the  helm  when 
the  lowering  clouds  portended  a  storm." 

The  result  is  well  known.  Gov.  Jay  was  elected,  and  by  a  large 
majority.*  The  Federalists  were  every  where  successful,  and  carried 
the  Legislature.  But,  from  the  smoke  of  the  contest,  some  of  the 
opposition  leaders  emerged  triumphantly,  and  among  these  Spencer 
and  De  Witt  Clinton  were  elected  to  the  Senate,  and  to  the  Assem- 
bly, that  name  of  evil  omen  to  the  Federal  party,  Aaron  Burr  ! 

The  Governor  called  the  Legislature  together  in  an  extra  session 
in  August,  of  this  year,  for  the  purpose  of  making  preparations  for 
the  immediate  defence  of  the  State,  in  prospect  of  a  war  with  France, 
resulting  from  the  unsuccessful  mission  of  Messrs.  Pinckney,  Gerry, 
and  Marshall.  For  the  moment,  says  the  biographer  of  Governor 
Jay,  the  voice  of  faction  was  drowned  in  a  loud  and  vehement  burst 
of  indignation  against  the  insulting  cupidity  of  the  French  Directory, 
and  the  Legislature  unanimously  voted  a  patriotic  address  to  the 
President,  pledging  the  support  of  the  State  of  New  York  in  his 
endeavors  to  maintain  the  rights  and  honor  of  the  nation.  An  act 
was  passed  appropriating  money  for  the  erection  of  fortifications 
and  the  purchase  of  arms,  at  the  discretion  of  the  Governor.  Little 
of  a  party  nature,  however,  transpired,  except  the  election  of  a 
United  States  Senator,  James  Watson,  a  Federalist,  hi  place  of  Gen. 
North,  who  had  been  temporarily  appointed  to  fill  a  vacancy. 

At  the  regular  session,  commencing  on  the  2d  of  January,  1799, 
the  strife  of  parties  again  commenced.  Under  the  vigorous  and 
skillful  opposition  of  Burr,  and  others  in  the  Legislature,  the  Repub- 
licans were  fast  organizing  that  powerful  party  which  two  years  later 
carried  the  State,  and  placed  Jefferson  in  the  presidential  chair. 
This  seemed  now  to  be  the  main  object  entertained  by  the  opposition 

*  His  majority  was  2,380.  Two  years  before,  the  whole  number  of  legal  voters 
in  the  State  was  returned  at  66,000. 


78  LIVES  OF  THE  CHIEF-JUSTICES. 

in  New  York,  at  least  of  all  save  one — for  who  shall  undertake  to 
fathom  the  mysterious  and  inscrutable  mind  of  Aaron  Burr? — and 
every  effort  was  directed  to  this  end.  Burr  himself  co-operated 
with  the  other  Republican  leaders,  and  brought  to  the  common  cause 
all  the  craft  of  his  singularly  subtle  intellect,  and  the  tact  of  a 
wily  and  experienced  politician. 

Matters,  however,  did  not  appear  very  auspicious  for  the  Repub 
licans.  The  elections  in  April,  1199,  were  decidedly  against  them. 
Burr,  himself,  at  the  head  of  the  Republican  ticket  for  the  Assembly 
in  Isew  York,  was  defeated,  and  the  Legislature  in  both  its  branches, 
still  remained  with  the  administration.  It  was  at  this  session,  in 
January,  1800,  that  the  Governor,  in  his  opening  speech  to  the  Leg- 
islature, had  occasion  to  allude  to  the  recent  national  affliction  which 
had  occurred  in  the  death  of  Washington.  His  language,  as  usual, 
was  chaste,  beautiful,  and  strictly  appropriate.  "You  will,  I  am 
persuaded,"  he  said,  "join  with  me  in  regretting  that  the  topic 
which  naturally  rises  first  into  view  on  this  occasion,  is  the  afflict- 
ing and  unexpected  death  of  that  virtuous  and  great  man  who,  both 
in  the  field  and  in  the  cabinet,  in  public  and  private  life,  attracted 
such  an  uncommon  degree  of  merited  esteem,  confidence,  and  admi- 
ration. His  memory  will  be  cherished  by  the  wise  and  good  of 
every  nation  ;  and  truth  triumphing  over  her  adversaries,  will  trans- 
mit his  character  to  posterity  in  all  its  genuine  lustre."  How  fully 
and  accurately  has  the  prediction  been  fulfilled  ! 

The  Legislature  cordially  responded  to  these  sentiments  and  adopted 
resolutions  suitable  to  the  occasion. 

Both  the  present  house  of  Assembly  and  the  Senate,  as  has  been 
observed,  were  strongly  Federal.  The  next  Legislature  were  to 
choose  electors  of  President  and  Vice-President  of  the  United  States. 
It  was  supposed  by  the  Federalists  that  they  would  carry  a  majority 
of  the  members  of  Assembly  at  the  election  in  April,  1800,  and 
thus  secure  all  the  presidential  electors.  Accordingly  on  a  bill  in- 
troduced at  this  session  to  divide  the  State  into  election  Districts, 
and  provide  for  the  choice  of  presidential  electors  by  the  people  in  the 
respective  districts,  the  Assembly  divided  upon  this  important  ques- 
tion, the  Federalists  opposing  and  the  Republicans  sustaining  the 
measure.  This  bill  was  finally  lost  by  a  party  vote,  55  to  47.  The 


JOHN  JAY.  79 

fact  it  is  necessary  to  state  in  order  properly  to  appreciate  a  circum- 
stance which  will  be  presently  alluded  to,  and  which  may  be  regarded 
as  one  of  the  finest  and  most  characteristic  passages  in  the  life  of 
Governor  Jay. 

The  Federalists,  however,  were  sadly  disappointed  in  their  hope 
of  carrying  the  election  in  this  memorable  spring  of  1800.  The 
great  tact  and  superior  management  of  Colonel  Burr,  were  peculiarly 
manifested  in  the  selection  of  the  Republican  candidates  in  the  city 
of  New'  York,  where  the  year  before  there  was  nearly  a  thousand 
Federal  majority.  Somewhat  unpopular  himself,  from  his  connection 
with  a  local  question,*  he  was  not  a  candidate  for  the  city,  but 
was  nominated  and  elected  in  the  county  of  Orange.  The  New 
York  nominees,  thirteen  in  number,  were  men  who,  says  Mr.  Ham- 
mond, "  in  wealth  and  talents,  and  weight  of  character,  were  proba- 
bly greater  than  any  other  equal  number  of  Republicans  then  to  be 
found  in  the  city,  or  perhaps,  any  other  equal  number  of  citizens." 
Among  them  may  be  mentioned  Governor  Clinton,  Brockholst  Livings- 
ton, (afterwards  Judge  of  the  Supreme  Court,)  Gen.  Horatio  Gates, 
Henry  Rutgers,  and  Col  Burr's  particular  friend  and  adherent,  John 
Swartwout.  The  result  was  a  decisive  Republican  triumph.  A 
large  and  controlling  majority  in  the  Assembly,  and  the  reduction  of 
the  Federal  majority  in  the  Senate  to  seven,  gave  the  choice  of  the 
twelve  presidential  electors  to  the  Republicans,  and  it  was  supposed 
insuring  the  election  of  Mr.  Jefferson  by  a  majority  of  three  in  the 
electoral  college. 

The  Federalists  now  saw  their  mistake  in  defeating  the  bill  to  di- 
vide the  State  into  electoral  districts  ;  for,  the  choice  of  Federal 
electors  from  only  a  few  of  the  districts,  would,  it  was  thought,  en- 
tirely change  the  aspect  of  the  presidential  election.  The  bill,  how- 
ever, had  been  opposed  and  defeated,  not  strictly  as  a  political  meas- 
ure, but  on  constitutional  grounds,  as  stated  at  the  time  by  that  able 
and  distinguished  lawyer,  John  Y.  Henry,  the  Federal  leader  in  the 
Assembly,  and  there  appeared,  therefore,  no  remedy. 

In  this  emergency,  as  soon  as  the  result  was  known,  the  bold  and 
impetuous  mind  of  Hamilton  conceived  a  project  to  defeat  the  elec- 

*  The  charter  of  the  Manhattan  Company,  which,  after  it  had  passed  the  Legis- 
lature, was  found  to  contain  banking  powers. 


80  LIVES  OF  THE  CfflEF-JTJSTICES. 

tion  of  Mr.  Jefferson,  which  may  be  properly  characterized  as  a 
mean  between  a  daring  coup  d'etat,  and  a  questionable  political 
finesse.  It  was  nothing  less  than  the  immediate  convening  of  the 
existing  Legislature,  in  an  extra  session,  for  the  purpose  of  passing  the 
very  bill  to  divide  the  State  into  electoral  districts,  which  his  own 
friends  in  the  Legislature  had  defeated  on  constitutional  grounds ! 
This  proposition  he  actually  made,  and  urged  with  much  earnestness 
•in  a  letter  to  Governor  Jay,  dated  May  7th,  1800.*  "  In  times  like 
these,"  remarks  the  writer,  "  it  will  not  do  to  be  over  scrupulous. 
It  is  easy  to  sacrifice  the  substantial  interests  of  society,  by  a  strict 
adherence  to  ordinary  rules."  And  again,  "  I  shall  not  be  supposed 
to  mean  that  anything  ought  to  be  done  which  integrity  will  forbid  ; 
but  merely  that  the  scruples  of  delicacy  and  propriety,  as  relative  to 
a  common  course  of  things,  ought  to  yield  to  the  extraordinary  nature 
of  the  crisis." 

But  John  Jay  did  not  so  understand  the  code  of  political  ethics. 
Not  only  was  he  guided  by  "  scruples  of  delicacy  and  propriety," 
but  by  a  sense  of  justice  and  of  right,  that  never  suffered  him  to 
sacrifice  a  principle  to  a  temporary  expediency,  or  swerve  a  hair's 
breadth  from  the  line  of  what  he  regarded  as  his  duty.  He  kept  his 
official  robes  as  Governor  of  the  State,  pure  and  unsullied,  as  he  had 
preserved  the  judicial  ermine.  The  Chief-Magistrate  of  New  York 
was  no  less  upright  and  single-minded  in  his  official  actions,  than  the 
Chief-Justice  of  the  United  States  had  been.  His  errors,  if  he  com- 
mitted any,  were  errors  of  position,  not  of  design — errors  resulting 
from  opinion,  which  every  liberal  mind  can  understand  and  tolerate, 
and  not  errors  knowingly  committed.  In  the  present  case,  it  appears 
that  even  the  highest  political  considerations  could  not  induce  him  to 
adopt  a  course  of  questionable  propriety.  He  shunned  the  very  ap- 
pearance and  suspicion  of  evil,  and  avoided  even  a  constructive 
wrong.  The  letter  of  Hamilton  was  found  among  his  papers  en- 
dorsed "  Proposing  a  measure  for  party  purposes  which  I  do  not  think 
it  becomes  me  to  adopt." 

Governor  Jay,  as  has  been  remarked,  was  no  lukewarm  politician  ; 
he  believed,  and  no  doubt  with  all  the  sincerity  of  a  thorough  convic- 

*  Thia  letter  is  published  at  length  in  the  life  of  Jay,  by  his  son,  but  without  the 
signature  of  Hamilton,  vol.  I.  page  412. 


JOHN  JAY.  81 

tion,  that  the  ascendancy  of  the  Republican  party  in  the  State  and 
nation  was  dangerous  to  the  political  institutions  he  had  assisted  in 
establishing.  Yet  with  him,  political  success  was  never  regarded  as 
the  sole  measure  of  right  and  wrong.  He  was  governed  by  higher 
and  nobler,  and  more  controlling  considerations.  Thus,  when  Jeffer- 
son was  elected  President,  and  some  of  the  political  friends  with 
whom  Gov.  Jay  acted,  were  counselling  indiscreet,  if  not  intemperate 
action,  the  same  hand  which  had  endorsed  the  above  words  upon 
the  letter  of  Gen.  Hamilton,  penned  a  letter  to  the  freeholders  of 
New  York,  containing  this  wise,  dignified,  and  temperate  advice : 
"  I  take  the  liberty,  therefore,  of  suggesting  whether  the  patriotic 
principles  on  which  we  profess  to  act,  do  not  call  upon  us  to  give 
(as  far  as  may  depend  upon  us)  fair  and  full  effect  to  the  known 
sense  and  intention  of  a  majority  of  the  people  in  every  constitu- 
tional exercise  of  their  will,  and  to  support  every  administration  of 
the  government  of  our  country,  which  may  prove  to  be  intelligent  and 
upright,  of  whatever  party  the  persons  comprising  it  may  be." 

These  simple  and  unobtrusive  passages  in  the  history  of  a  life, 
however  unimportant  they  may  at  first  sight  appear,  are  noticeable 
facts,  and  should  never  be  lost  sight  of  when  we  come  to  measure 
the  moral  worth  of  the  individual.  They  are  strongly  charac- 
teristic. They  lay  open  to  us  the  mind,  the  heart,  the  inner  life  of 
the  man.  They  indicate  the  salient  features  of  his  character  ;  they 
serve  to  measure  his  sincerity  and  truth  ;  they  point  out  the  secret 
springs  which  prompt  his  action — the  motives  which  regulate  his 
conduct — and  by  them  we  can  estimate  the  moral  worth,  and  just 
value  of  the  man.  The  passages  I  have  alluded  te,  beautifully  illus- 
trate the  character  of  John  Jay — -his  uprightness  of  conduct — his 
sincerity  of  purpose — his  purity  of  mind.  They  show  him,  down  to 
the  close  of  his  political  career,  the  John  Jay  of  the  Revolution,  of 
the  Continental  Congress,  and  of  the  New  York  Provincial  Assemblies. 

The  close  of  his  official  career  was  rendered  less  dignified  perhaps, 
certainly  less  agreeable,  by  that  political  contest  between  the  Gover- 
nor and  his  council  of  appointment,  which  has  been  alluded  to  on  a 
former  page.  Not  that  it  detracted  from  the  personal  dignity  of 
Gov.  Jay,  but,  that  it  placed  him  in  an  unenviable  and  awkward 
position  ; — he,  a  veteran  statesman,  just  about  to  retire  forever  from 
6 


82  LIVES  OF   THE  CHIEF^TJSTICES. 

public  life,  drawn  thus  by  the  force  of  circumstances,  and  an  honest 
regard  for  the  preservation  of  his  constitutional  rights  and  official 
dignity-,  into  a  contest  with  two  of  the  ablest,  most  energetic  and 
ambitious  of  those  young  Republican  politicians,  who  were  yet 
children  at  school,  at  a  period  when  Jay  had  earned  for  himself  a 
reputation  as  a  statesman. 

It  may  well  be  imagined  that  there  must  have  been  something  lu- 
dicrous, notwithstanding  the  gravity  and  earnestness  of  their  delib- 
eration, in  these  two  or  three  meetings  of  the  council,  in  the  winter 
of  1800  and  1801.  On  the  one  side  sat  Spencer,  De  Witt  Clinton, 
and  Roseboom  :  on  the  other  the  Governor,  (for  the  first  time  dur- 
ing his  official  career,  in  a  minority,)  with  his  solitary  adherent. 
Eight  different  nominations  for  a  Sheriff  of  the  county  Dutchess 
were  made  by  the  Governor  at  the  first  meeting — and  each  time  was 
the  nominee  rejected  by  the  council.  A  few  other  nominations  were 
then  suffered  to  pass  the  ordeal,  and  the  council  adjourned.  At  the 
next  meeting  the  Governor  yielded  the  sheriff  of  Dutchess  and  nom- 
inated a  Republican,  who  was  approved.  A  third  and  final  meeting 
was  held  on  the  24th  of  February.  The  Republican  members  of 
the  Council  determined  to  approve  no  Federal  nominee  for  the  office 
of  sheriff,  in  either  of  the  counties  of  Orange  or  Schoharie.  Gov. 
Jay  proceeded  as  usual,  to  nominate  for  Sheriff  of  the  county  of 
Orange.  A  single  affirmative  responded  to  the  nomination,  and 
three  resolute  and  determined  voices  were  heard  in  the  negative. 
Again  and  again  were  different  individuals  named  for  the  office,  but 
with  the  same  result.  It  was  evident  that  nothing  could  be  done 
unless  his  excellency  should  yield,  which  did  not  seem  to  be  at  all 
probable.  At  this  juncture  the  Governor  was  startled  by  a 
very  bold  and  novel  procedure.  "  I  nominate  John  Blake,  Jr.," 
said  Clinton,  in  the  firm  tone  of  a  man  assured  of  his  position.  The 
meeting  had  in  a  moment  been  transformed  from  a  Council  into  a  de- 
liberative assembly !  Jay  hesitated  an  instant,  but  refused  to  en- 
tertain the  motion  or  put  the  question,  "  I  nominate  John  Nichol- 
son," he  then  said  ;  Clinton,  Spencer,  and  Roseboom  refused  to 
vote  ;  matters  had  come  to  a  stand  still,  and  the  business  of  the 
Council  was  at  an  end.  Gov.  Jay,  thereupon  stating  that  he  desired 
time  for  deliberation,  adjourned  the  Council,  and  never  convened  it 


JOHN  JAY.  83 

again,  leaving  the  vacant  offices  unfilled.  Thereupon  he  sent  in  a  com- 
munication to  the  Assembly,  asking  its  direction,  which  that  body  re- 
fused to  give,  on  the  ground  that  it  was  a  constitutional  question, 
not  to  be  decided  by  them.  He  also  addressed  the  Chancellor  and 
Judges  of  the  Supreme  Court,  but  they,  too,  declined  giving  an 
opinion,  on  the  ground  that  it  was  not  within  the  scope  of  their 
official  duties. 

The  term  of  office  of  Governor  Jay  expired  on  the  1st  of  July, 
1801.'  It  seems  that  he  had  for  some  time  contemplated  a  final 
withdrawal  from  public  life.  The  determination  had  been  formed 
with  deliberation,  and  it  was  adhered  to  with  rigid  firmness.  To  the 
committee  who  waited  upon  him  soliciting  him  to  accept  a  nomina- 
tion for  a  third  term,  he  replied  :  "  The  period  has  now  nearly  ar- 
rived, at  which  I  have  for  many  years  intended  to  retire  from  the 
cares  of  public  life,  and  for  which  I  have  been  for  more  than  ten  years 
preparing."  Mr.  Jay  had  become  weary  of  the  toils  and  cares  of 
public  life  ;  perhaps,  too,  the  example  of  Washington  in  declining 
to  serve  a  third  term,  may  not  have  been  without  its  influence  upon 
his  mind  ;  at  all  events  he  seems  to  have  adopted  the  resolution  as 
a  matter  of  choice,  and  not  from  any  anticipation  of  a  possible  ad- 
verse result  at  the  election.  No  public  inducements  were  able  to 
tempt  him  to  resign  the  retirement  he  had  voluntarily  chosen.  A 
short  time  after  he  thus  declined  a  third  nomination  for  Governor, 
the  President,  Mr.  Adams,  unexpectedly  informed  him,  that  he  had 
been  appointed,  and  confirmed  to  his  old  office  of  Chief-Justice  of 
the  United  States.  "  It  appeared  to  me,"  remarks  Mr.  Adams,  in 
explaining  to  Jay  the  cause  of  his  nomination,  "that  Providence 
had  thrown  in  my  way  an  opportunity,  not  only  of  marking  to  the 
public  the  spot  where,  in  my  opinion,  the  greatest  mass  of  worth 
remained  collected  in  one  individual,  but  of  furnishing  my  country 
with  the  best  security  its  inhabitants  afforded  against  the  increasing 
dissolution  of  morals."  Jay,  however,  declined  the  appointment, 
and  six  weeks  before  the  close  of  his  term  of  office,  removed  to  his 
family  estate,  at  Bedford,  a  quiet  and  retired  part  of  Westchester 
county,  about  fifty  miles  from  the  city  of  New  York,  where  he  con- 
tinued to  reside  to  the  day  of  his  death. 


84:  LIVES   OF   THE  CHIEFJUSTICES. 

The  public  career  of  this  eminent  man  was  now  closed — closed  at 
a  period  of  life,  (for  he  was  but  56  years  of  age,)  when  many  of 
our  public  men  have  not  reached  midway  their  course  of  usefulness. 
And  yet  what  an  active,  and  busy,  and  eventful  life  had  been  his  ; 
and  what  a  startling  chapter  in  the  history  of  America,  and  of  the 
world,  had  been  written  during  the  quarter  of  a  century  which  had 
elapsed  since  he  first  entered  the  service  of  his  country  !  With  the 
events  of  that  period,  whose  results  have  been  so  grand  and  stupen- 
dous, his  name,  as  we  have  seen,  is  intimately  associated,  and  with- 
out it  the  history  of  the  times  cannot  be  written.  He  now  finally 
passed  from  the  stage,  and  during  the  next  quarter  of  a  century 
lived  in  the  unbroken  seclusion  of  a  quiet  and  contemplative  retire- 
ment, a  silent,  but  not  an  indifferent  spectator  to  the  course  of  pub- 
lic events,  and  to  the  development  of  those  institutions  which  his 
hands  had  helped  to  raise. 

Little  remains  to  be  added  to  this  imperfect  sketch  of  Gov.  Jay's 
career.  The  remainder  of  his  life,  as  his  son  remarks,  being  entirely 
passed  in  the  bosom  of  his  family,  and  in  the  peaceful  and  unosten- 
tatious discharge  of  the  duties  of  religion  and  benevolence,  affords 
but  few  instances  for  the  biographer.  It  was  the  life  of  the  upright 
and  just  man — the  faithful  public  servant,  who  has  discharged  his 
whole  duty — whose  conscience  is  void  of  offence,  and  who  feels  the 
pleasing  satisfaction  that  his  work  is  done.  His  time  was  principally 
passed  in  those  agreeable  employments,  which  were  so  much  in  ac- 
cordance with  his  natural  tastes,  the  pursuits  of  agriculture.  His 
amusements  and  recreations  were  few  and  simple.  He  found  the 
most  of  them  within  the  bosom  of  his  family,  or  in  the  resources  of 
his  own  mind.  A  work  of  benevolence  or  charity  would  sometimes 
occupy  his  attention — the  building  of  a  church,  or  the  interests  of 
an  educational  or  religious  society.  At  rare  intervals,  a  journey  to 
New  York  or  Albany,  on  a  visit  to  some  member  of  his  family — of- 
ten on  horseback,  exercising  in  open  air — frequently  conversing,  as 
he  says,  with  the  "  mighty  dead,"  of  whom  Cicero  was  his  favorite, 
or  reading  the  Scriptures — now  and  then  a  letter  to  an  old  friend — 
these  and  kindred  employments  went  to  make  up  the  routine  of  his 
daily  life.  To  the  question  how  it  was  possible  for  him  to  occupy 


JOHN  JAY.  85 

his  mind  in  the  seclusion  of  his  retirement,  he  replied  with  a  smile,"  I 
have  a  long  life  to  look  back  upon,  and  an  eternity  to  look  forward 
to."  If  the  character  of  this  eminent  man  is  beautiful  in  its  simplicity 
and  its  moral  purity,  it  becomes  still  more  interesting  when  regarded 
as  a  bright  example  of  Christian  virtue.  The  tone  of  his  mind  was 
always  serious.  He  regarded  religious  meditation  and  worship  as  no 
unimportant  part  of  the  duties  of  life.  He,  himself,  in  his  own  family, 
regularly-  led  the  family  devotions  both  morning  and  evening ;  and 
though  courtesy  to  guests  might  sometimes  postpone  the  customary 
early  hour  for  retiring,  yet  the  presence  of  company  never  postponed 
nor  suspended  the  family  worship.*  Death  invaded  his  quiet  retreat 
within  a  twelvemonth  after  he  entered  it,  and  snatched  away  the  wife 
of  his  bosom,  who  for  so  many  years  had  been  his  companion  and 
counsellor.  Jay  endured  the  afflicting  dispensation,  not  merely  with 
the  calmness  of  a  philosopher,  but  with  that  better  resignation  and 
nobler  fortitude  which  Christianity  inspires. 

The  retirement  of  Mr.  Jay  was  seldom  broken  in  upon,  and  he  re- 
garded the  political  dissensions  of  the  day,  with  the  philosophic  gaze 
of  a  mere  spectator.  It  is  not  true,  however,  as  has  been  stated,  that 
he  took  no  interest  in  politics,  and  would  not  even  peruse  poh'tical 
newspapers.  On  the  contrary,  he  constantly  read  the  news  of  the  day, 
and  at  times  took  papers  of  opposite  politics,  that  he  might  obtain 
more  full  information  of  passing  events.  He  also  made  it  a  point  of 
duty  to  vote  at  every  election.f 

The  manner  of  his  life,  we  are  told,  was  simple  and  regular.  He 
rose  with,  or  before,  the  sun,  read  prayers,  breakfasted,  aud  then 
spent  the  greater  portion  of  the  day  in  the  open  air,  often  on  horse- 
back. He  conscientiously  devoted  himself  to  the  duties  of  a  private 
life  ;  he  improved  his  paternal  acres  ;  he  rebuilt  the  mansion  of  his 
fathers;  he  was  kind  to  his  dependents,  useful  to  his  equals.  He  busied 
himself  with  all  the  interesting  occupations  of  a  country  life  ;  was 
a  promoter  of,  and  a  member  of  societies  for  the  diffusion  of  know- 
ledge and  religion,  and  instructed  his  relations  and  servants  in  those 

*  Life  by  Wm.  Jay,  vol.  I.  p.  444. 

t  Letter  of  Judge  William  Jay  to  Mr.  Hammond,  note  D,  Political  History  of 
New  York. 


86  LIVES  OF  THE  CHEEF^JUSTICES. 

Christian  principles  which  had  always  been  the  guide   of  his  own 
course.* 

Such  were  the  occupations  and  manner  of  life  of  this  venerable 
patriot  and  statesman,  for  the  period  of  more  than  a  quarter  of  a 
century.  The  evening  of  his  life  was  serene  and  quiet,  and  he  went 
down  to  the  tomb  full  of  years  and  honors.  On  the  14th  of  May, 
1829,  having  retired  to  his  bed  in  the  enjoyment  of  his  customary 
health,  he  was  seized  with  palsy,  from  which  he  never  recovered. 
He  died  on  the  17th  of  the  same  month  in  the  84th  year  of  his  age. 

Mr.  Jay  was  married  in  April,  1774,  to  Sarah  Yan  Brugh  Liv- 
ingston, daughter  of  William  Livingston,  who  had  recently  removed 
from  New  York  to  New  Jersey,  and  was  subsequently  for  many 
years  Governor  of  the  latter  State.  He  was  also  a  member  with 
Mr.  Jay  of  the  Continental  Congress  of  1775.  By  this  marriage,  Mr. 
Jay  had  several  children,  among  whom  were  the  late  Peter  A.  Jay,  an 
eminent  lawyer  of  New  York,  and  Judge  William  Jay,  of  West- 
chester  county,  who  still  continues  to  occupy  the  family  mansion  in 
the  town  of  Bedford. 

The  prominent  features  of  Gov.  Jay's  character  are  plainly  indi- 
cated in  his  various  official  and  public  actions,  as  well  as  in  his  quiet 
and  unostentatious  discharge  of  the  duties  of  private  life.  He  was 
not,  perhaps,  what  may  be  called  a  great  man.  He  was  not  gifted 
with  those  shining  qualities  of  genius,  which  at  once  astonish  and 
dazzle  mankind  ;  nor  was  he  endowed  with  those  creative  faculties, 
that  originality  of  thought,  that  vigorous  grasp  of  intellect  which 
stamp  their  possessor  with  the  impress  of  greatness.  And  yet, 
though  laying  claim  to  none  of  these,  his  was  far  from  a  mediocrity, 
much  less  an  inferiority,  of  intellect.  Jay  was  decidedly  an  able 
man — a  man  of  extensive  attainments  and  erudition — a  vigorous 
writer,  and  a  sound  thinker.  He  was  more — he  had  a  healthy,  tem- 
perate, and  well-balanced  mind — a  clear,  sound,  and  comprehensive 
judgment — an  admirable  prudence  and  caution.  And  withal  he 
was  a  conscientious  and  a  just  man — just  to  his  neighbours,  as  well 
as  to  his  family,  just  to  his  political  opponents,  as  well  as  to  his 

*  Prof.  Renwick's  Sketch  of  Jay,  p.  134. 


JOHN  JAY.  87 

friends.  The  caution  of  Jay  was  a  quality  not  resulting  from  timid- 
ity or  irresolution.  Few  men  were  capable  of  acting  a  bolder  or 
more  determined  part,  when  occasion  demanded.  Thus  we  have  seen 
that  when  Livingston  and  the  New  York  members  hesitated  to  sign 
the  Declaration,  Jay  stepped  boldly  forward  in  the  Convention, 
and  assumed  the  responsibility  of  recommending  its  approval  ;  and 
thus,  too,  while  on  his  mission  in  Spain,  without  any  present  prospect 
of  meeting  the  payment  of  the  heavy  amounts  drawn  upon  him,  he  ac- 
cepted all  bills  at  his  own  risk — an  act  which  some  might  call  temer- 
ity and  rashness.  But  the  prudent  conduct  of  Jay  was  rather  the 
result  of  that  innate  love  of  justice,  that  desire  on  all  occasions  of 
standing  publicly  upon  the  clearest  and  most  defensible  issues,  that 
effort  to  avoid  every  controversy,  unless  under  the  most  obvious 
claim  of  right.  Thus  it  was,  that  even  after  the  humble  petition  of 
the  first  Congress  to  the  King  had  been  treated  with  the  most  in- 
eulting  neglect,  Jay  originated  and  carried  through,  in  the  next  Con- 
gress, against  the  most  determined  opposition,  the  proposition  to 
send  another  "petition"  to  the  King,  which  in  like  manner  was 
"spurned  from  the  foot  of  the  throne."  He  desired  to  place  the 
action  of  the  Congress  upon  the  highest,  the  clearest  and  most  in- 
disputable basis  of  right,  and  to  leave  no  cause  for  cavil,  even  on 
the  part  of  the  friends  of  the  British  cause.  It  was  the  sugges- 
tion, not  of  prudence  merely,  but  of  wisdom,  for  it  placed  in  the 
hands  of  Congress,  a  moral  power  which  nothing  else  could  give. 
The  same  calm,  deliberate,  but  firm  judgment,  tempered  always 
with  prudence  and  caution,  is  observable  in  all  his  actions.  And 
yet  he  was  deficient  neither  in  quickness  of  determination,  vigor  and 
boldness  of  design,  nor  tenacity  of  purpose.  Indeed,  in  some  respects 
he  might  be  called  an  obstinate  man — tenacious  of  what  he  believed 
to  be  the  right — never  conceding  a  point  of  conscience,  and  never 
yielding  a  principle. 

The  virtues  of  such  a  man  might  still  be  remembered  and  sung  in 
lyric  strains  by  the  Roman  bard — 

Justum  et  tenacem  propositi  virum, 

though  the  republic  no  longer  existed,  and  the  last  bright  exemplar 
of  those  virtues  had  passed^away.  The  same  virtues  lived  and  were 


88  LIVES  OF  THE  CHIEF-JUSTICES. 

exemplified  in  the  early  ages  of  our  republic,  and  in  the  character 
of  John  Jay.  Just  and  firm  of  purpose,  neither  the  idle  clamor  of 
the  populace,  nor  the  countenance  of  the  tyrant  could  avail  to  shake 
his  solid  temper  ;  and  these  virtues,  though  perchance  they  may  not 
be  breathed  in  the  numbers  of  some  future  lyric  song,  will  be  re- 
membered in  history,  even  though  America  should  follow  the  example 
of  the  proud  republic  of  antiquity.  .>'. . 


JOHN    RUTLEDGE. 


M  ' 


JOHN  RUTLEDGE, 


THE  practical  sagacity  of  Washington,  and  his  almost  intuitive 
knowledge  of  character,  rarely  failed  him  in  that  most  difficult  branch 
of  executive  duty,  appointments  to  places  of  official  trust  and  respon- 
sibility. In  the  administration  of  government,  as  well  as  upon  the 
theatre  of  military  operations,  he  was  not  only  quick  in  discerning 
real  merit,  but  correct  in  estimating  the  true  worth  of  a  man  and 
his  fitness  for  the  discharge  of  a  specific  duty.  The  same  penetrat- 
ing glance  which  discovered  under  the  modest  garb  of  General 
Greene  a  military  genius  fit  to  direct  the  operations  of  the  southern 
army,  discovered  also,  not  the  ability  and  worth  only,  but  the  pre- 
cise sphere  of  action  suited  to  the  capacity  and  genius  of  the  men 
he  called  around  him  to  fill  the  highest  executive  and  judicial  sta- 
tions under  the  Federal  Government.  Thus  it  was  that,  on  the 
resignation  of  Chief-Justice  Jay,  trusting  to  the  instincts  of  his  own 
mind,  and  relying  upon  his  own  discriminating  judgment,  in  oppo- 
sition to  the  advice  of  perhaps  the  most  trusted  of  his  counsellors, 
he  passed  by  such  able  jurists  as  Ellsworth  and  Livingston,  Gushing 
and  Paterson,  and  promptly  tendered  the  vacant  Chief-Justiceship 
to  JOHN  RUTLEDGE,  of  South  Carolina. 

It  is  much  to  be  regretted  that  no  complete  biography  of  this 
eminent  statesman  and  jurist  has  been  written,  and  that  so  little  is 
now  known  of  one  of  the  earliest,  and  ablest,  and  firmest  friends  of 
American  independence. 

John  Rutledge  was  a  man  of  mark  and  of  note  in  his  day  ; — at 
once  the  Adams  and  the  Patrick  Henry  of  South  Carolina — chief 
among  the  South  Carolina  revolutionary  leaders — first  in  station,  in 


92  LIVES  OF  THE  CHIEF-JUSTICES. 

influence,  in  talent,  amid  the  brilliant  galaxy  of  patriots  whose  names 
adorn  the  revolutionary  annals  of  his  native  State.  It  is  true  that 
the  main  facts  of  his  public  career  remain  to  us,  forming,  as  they  do, 
a  part  of  the  history  of  his  native  State  and  the  country.  Here  and 
there  may  also  be  discovered  traces  of  his  judicial  life,  in  the  few 
and  not  very  fully  stated  cases  found  in  the  earlier  South  Carolina 
reports  ;  but  it  is  to  be  feared,  that  now,  after  the  lapse  of  more 
than  half  a  century,  the  real  John  Rutledge  of  tLe  Continental  Con- 
gress and  of  the  Revolution — the  John  Rutledge  as  he  lived  and 
acted  in  private  as  well  as  in  public  life — as  he  appeared  upon  the 
bench  and  to  his  cotemporaries  of  the  bar — has  passed  away,  and 
that  it  will  be  difficult,  if  not  impossible  to  revive  any  considerable 
portion  of  those  private  memoirs  and  personal  reminiscenses  which 
go  to  make  up  the  most  suggestive  and  interesting  portion  of  biogra- 
phy. A  late  writer  has  alluded  to  the  difficulty  of  drawing  a  faithful 
sketch  of  Rutledge's  career,  and  remarks :  "  This  now  can  only  imper- 
fectly be  done.  The  private  records  are  wanting.  There  are  no  family 
memorials,  or  very  few.  The  voluminous  correspondence  of  Mr.  Rut- 
ledge,  as  President  of  the  colony  of  South  Carolina,  Governor  of  the 
State,  its  representative  in  Congress,  and  Chief-Justice  of  the  United 
States,  seems  now  to  be  irrecoverable,  and  but  a  few  letters  remain 
to  us  which  are  yet  unpublished."*  I  shall,  however,  avail  myself  of 
such  materials  as  can  now  be  obtained,  to  give  some  account  of  the 
life,  public  services,  and  judicial  career  of  the  second  Chief-Justice  of 
the  United  States. 

The  father  of  John  Rutledge  was  a  physician.  He  emigrated 
from  Ireland  with  his  brother  Andrew  about  the  year  1735.  The 
two  brothers  settled  in  South  Carolina,  where  John  commenced  the 
practice  of  medicine,  and  Andrew  the  practice  of  the  law.  Two  or 
three  years  after  his  arrival,  Dr.  John  Rutledge  married  Miss  Hexe, 
a  young  lady  not  yet  fifteen  years  of  age,  who  in  1739  gave  birth  to 
a  son,  the  subject  of  this  memoir.  John  was  the  oldest  of  seven 

From  an  interesting  sketch  of  the  life  of  Rutledge,  by  the  author  of  "  The 
Partisan,"  "  The  Yemassee,"  &c.,  &c.,  published  in  the  American  Review  for  1847. 
In  this  sketch  Dr.  Simms  has  presented  us  with  some  curious  original  corres- 
pondence of  Rutledge  during  the  war,  from  which  I  have  taken  the  liberty  to  make 
ft  few  brief  extracts.  See  Post,  pp.  134-140. 


JOHN  RUTLEDGE.  93 

children.  The  celebrated  Edward  Rutledge,  one  of  the  signers  of 
the  Declaration  of  Independence,  of  whom  I  shall  hereafter  have 
occasion  to  speak,  was  the  youngest  of  these  children.  He  was 
born  in  1749,  soon  after  which  Dr.  Rutledge  died,  leaving  to  his 
young  widow  the  care  and  training  of  her  large  family.  We  are« 
told  she  was  a  woman  of  great  energy,  and  of  more  than  ordinary 
endowments.  How  she  accomplished  the  task  thus  devolved  upon 
her,  the  future  history  of  her  distinguished  sons  will  speak  for  itself. 

The  ea'rly  education  of  young  Rutledge  was  the  best  that  the 
colony  of  Carolina  at  that  day  afforded.  He  was  placed  under  the 
tuition  of  David  Rhind,  an  eminent  and  successful  teacher  of  the 
classics.  Having  made  what  progress  he  could  in  the  institutions 
of  Charleston,  his  mother,  who  was  possessor  in  her  own  right  of 
an  ample  fortune,  and  spared  no  pains  in  the  education  of  her  child- 
ren, sent  him  to  England  to  complete  his  preliminary  studies.  Here, 
after  a  time,  having  determined  to  follow  the  profession  of  the  law, 
he  was  entered  a  student  of  the  Temple,  in  London,  and  was  in  due 
time  licensed  a  barrister-at-law.  The  same  course  was  subsequently 
pursued  by  his  younger  brother,  Edward.* 

Mr.  Rntledge  returned  to  Charleston,  where  he  commenced  the 
practice  of  the  law  in  1161.  He  was  then  twenty-two  years  of  age. 
He  entered  upon  his  profession  under  the  prestige  of  a  reputation  for 
ability,  attainments  and  eloquence  second  to  that  of  no  young  man 
in  the  colony.  Unlike  many  others,  however,  who  have  commenced 
life  under  equally  favorable  auspices,  but  whose  attainments  have 
been  brilliant  and  precocious,  rather  than  solid,  young  Rutledge  did 
not  disappoint  the  high  expectations  that  had  been  formed  of  him. 
It  has  been  said  of  him  with  truth  that  he  rose  in  his  profession  at 
a  bound,  and  that  his  was  no  tedious  probation.  Cotemporary  accounts 
still  preserve  the  memory  of  his  first  effort  at  the  bar,f  an  effort  in 
which  the  vehemence  and  power  of  his  diction,  the  splendor  of  his 
declamation,  the  brilliancy  of  his  eloquence,  confounded  his  adversa- 

*  This  was  the  course  usually  followed  by  young  gentlemen  of  fortune  and 
family  at  that  day  in  South  Carolina,  Rutledge's  three  colleagues  who  signed 
the  declaration,  Heyward,  Lynch,  and  Arthur  Middleton,  all  young  men  like  him- 
self, completed  their  academic  studies  at  the  English  universities  ;  and  so  also  did 
the  Pinckneys,  William  Henry  Drayton,  and  others. 

t  See  Sketch  of  Rutledge  by  Dr.  Ramsay,  2  History  of  South  Carolina. 


94  LIVES  OF  THE  CHIEF-JUSTICES. 

ries,  and  carried  away  the  judgment  and  feelings  of  the  jury.  It 
was  in  an  action  for  damages  for  a  breach  of  promise  to  marry — an 
action  of  very  infrequent  occurrence  at  the  south,  and  one  which 
was  well  calculated  to  excite  the  interest  and  fix  the  attention  of 
the  public.  His  successful  debut  in  this  suit  was  but  the  prelude  to 
a  brilliant  career  at  the  bar.  It  gave  him  at  once  position  among 
his  brethren  of  the  profession.  How  Mr.  Rutledge  maintained  that 
position  is  shown  by  his  future  forensic  triumphs.  Business  accumu- 
lated rapidly  on  his  hands  ;  that  description  of  business  which  fur- 
nishes the  best  test  of  professional  ability  and  success,  a  test  which 
is  to  be  found  in  the  importance  and  character  of  the  cases  sub- 
mitted to  the  care  of  the  advocate,  and  the  liberal  compensation 
with  which  his  services  are  rewarded.  It  became  customary,  says 
the  writer  I  have  quoted,  to  think  that  his  clients  were  necessarily  to  be 
successful,  and  no  doubt  a  foregone  conclusion  of  this  sort  did  much  to- 
wards the  further  conviction  of  judge  and  jury.  Such  a  conviction 
could  not  readily  have  been  reached  until  repeated  triumphs  had  im- 
pressed the  popular  mind  with  the  most  perfect  assurance  of  his  powers. 

The  same  writer,*  speaking  of  Rutledge's  characteristics  as  a  law- 
yer, remarks  :  "  He  had  shown  himself  equal  at  once  to  the  boldest 
flights  of  passion  and  fancy,  and  to  the  strictest  and  severest  pro- 
cesses of  ratiocination.  His  reason  and  his  impulse  wrought  happily 
together.  His  enthusiasm  was  never  suffered  to  cripple  his  induc- 
tion, nor  the  severity  of  his  analysis  to  stifle  the  ardor  of  his  utter- 
ance. A  happy  combination  of  all  the  essentials  of  the  lawyer  and 
the  orator  were  soon  acknowledged  to  be  in  his  possession." 

And  again,  at  a  later  period,  in  speaking  of  his  qualifications  as 
a  judge  :  "He  was  born  a  lawyer.  His  studies  in  his  profession 
had  been  pursued  con  amore.  He  had  wrestled  with  the  law  as  one 
wrestles  with  a  mistress,  and  had  taken  her  to  his  heart  as  well  as 
to  his  lips.  His  knowledge  of  principles  was  profound — his  appre- 
ciation of  details  accurate  and  immense  ;  and  that  large  grasp  of 
judgment,  that  comprehensive  reach  of  vision,  which  enabled  him  to 
take  in  at  a  glance,  not  merely  the  central  proportions,  but  all  its 
several  relations  and  dependencies,  eminently  fitted  him  for  the  new 
career  before  him.  With  the  facts  fairly  within  his  survey,  his 
*  Dr.  Simms'  Sketch  of  the  Life  of  Rutledge,  American  Review. 


JOHN  EUTLEDGE.  95 

amp  (Pail  was  instantaneous.  His  mind  seemed  to  leap  to  its  con- 
clusions at  a  bound.  He  loved  pleading — could  listen  with  rare 
delight  to  the  eloquence  of  the  specious  advocate  ;  but  while  these 
gratified  his  sense  of  the  ingenious  and  beautiful,  they  failed  to  per- 
suade his  fancy  or  to  mislead  his  judgment.  His  sense  of  justice 
was  invincible.  He  threaded  with  ease  the  most  difficult  avenues 
of  litigation — speedily  resolved  the  subtleness  of  special  pleading — 
steadily  pursued,  and  finally  grasped  the  leading  principle  of  the 
case,  and  rendered  his  judgments  so  luminously  and  forcibly,  as  in 
most  cases  to  satisfy  even  those  who  suffered  from  his  decision." 

Such  was  Rutledge  as  he  afterwards  appeared  in  the  character 
of  a  judge.  And  indeed  such  was  he  in  these  the  earlier  years  of 
his  professional  life.  But  a  higher  eulogium  is  paid  him,  and  a  bet- 
ter testimonial  afforded  of  his  splendid  professional  success,  in  the 
fact  which  has  become  matter  of  history,  that  within  four  years  from 
his  debut  at  the  bar,  he  had  reached  so  high  a  public  standing,  and 
acquired  so  large  a  share  of  the  public  confidence,  that  he  was  ap- 
pointed a  delegate,  with  General  Christopher  Gadsden  and  Thomas 
Lynch,  to  represent  the  province  of  South  Carolina  in  the  first  Con- 
gress of  the  colonies. 

This  Congress  assembled  in  1765,  soon  after  the  passage  of  the 
memorable  Stamp  Act.  It  convened  on  the  proposition  of  the  pro- 
vince of  Massachusetts,  and  was  the  first  step  taken  toward  a  per- 
manent political  organization  and  union  among  the  colonies.  The 
people  of  South  Carolina  were  among  the  first  to  respond  to  the  call 
of  their  New  England  brethren.  The  question,  however,  was  not 
decided  without  great  and  violent  opposition.  There  was  a  feeling 
of  deep-rooted  loyalty  among  the  people  of  the  colony — the  descend- 
ants of  the  cavaliers  of  England — and  they  looked  with  suspicion 
and  alarm  upon  this  proposition  for  a  union.  But  the  leading  in- 
tellect of  the  province,  the  men  of  real  talent  and  influence,  were 
mostly  in  favor  of  a  vigorous  assertion  of  colonial  rights.  Among 
these  was  Christopher  Gadsden,  who  perhaps  contributed  more  than 
any  other  man  to  awaken  the  spirty  of  the  colony  and  to  excite  the 
people  to  prompt  and  vigorous  action.  The  year  previous,  the  royal 
Governor  had  refused  to  administer  the  oath  to  General  Gadsden  as 
member  of  Assembly,  and  he  thus  became  virtually  disfranchised  on 


96  LIVES  OF   THE  CHIEF-JUSTICES. 

account  of  the  freedom  of  Ms  political  opinions.  The  Assembly, 
•with  much  spirit,  protested  against  this  high-handed  act,  and  the 
usurpation  of  the  royal  representative  was  vigorously  denounced, 
both  in  and  out  of  the  legislative  body.  Among  the  boldest,  the 
most  earnest,  and  most  eloquent  in  their  denunciations  was  John 
Rutledge.  It  was  his  first  step  upon  that  brilliant  political  career 
which  the  colonial  struggle  laid  open  before  him — a  career  which  he 
entered  with  all  the  fire  of  youth,  all  the  zeal  of  an  impassioned  tem- 
per, and  the  ardor  of  a  bold  and  impetuous  mind. 

This  circumstance  doubtless  contributed  much  to  shape  the  future 
course  of  Rutledge,  and  to  give  that  strong  and  decided  tone  to  his 
opinions  in  regard  to  colonial  rights  which  he  ever  afterwards  enter- 
tained and  avowed.  His  was  one  of  those  unconquerable  wills,  one 
of  those  firm  and  unyielding  tempers,  which  opposition  and  resistance 
serve  only  to  strengthen  and  confirm  in  its  purpose.  His  eye  was 
never  accustomed  to  look  back,  nor  his  foot  to  retrograde.  From 
that  day  down  to  the  close  of  the  struggle,  he  was  the  firm,  vigorous, 
and  uncompromising  champion  of  the  rights  of  the  colonies,  always 
in  advance  of  the  popular  movement,  always  the  advocate  of  the 
boldest  measures,  and  always  the  formidable  opponent  of  the  royal 
authority.  He  was  doubtless  among  the  first  who  contemplated  the 
independence  of  America  ;  and  when  the  rupture  actually  occurred,  he 
would  have  been  the  last  to  consent  to  a  reconciliation. 

The  Stamp  -Act  was  followed  by  the  proposal  of  Massachusetts 
to  the  provincial  Assemblies  to  send  delegates  to  a  common  Con- 
gress. Christopher  Gadsden,  as  has  been  already  mentioned,  at  once  v 
came  down  in  support  of  the  measure.  He  was  vigorously  and 
ably  sustained  by  Rutledge,  who  went  into  the  contest  with  his 
accustomed  spirit  and  zeal.  Tradition  still  preserves  to  us  the 
memory  of  that  vehement  and  impassioned  eloquence  which  brought 
home  to  the  minds  and  the  hearts  of  the  people  of  South  Carolina 
a  conviction  of  the  importance  and  necessity  of  the  proposed  mea- 
sure ; — but  it  is  the  memory  alone,  faint  and  dun  in  the  distance  of 
the  past,  and  while  the  imperishable  result  stands  out  a  notable 
and  prominent  historical  fact,  the  breathing  thoughts  and  burning 
words  of  the  orator  which  so  largely  contributed  to  bring  about  that 


JOHN  RUTLEDGE.  97 

result,  passed  away,  finding  no  record  in  the  present,  and  no  life  in 
the  future. 

It  is  sufficient  to  say  that  the  efforts  of  Rutledge  and  Gadsden 
were  successful.  After  a  vigorous  opposition  in  the  Colonial  As- 
sembly,* the  measure  passed  by  a  small  majority,  and  three  depu- 
ties .were  appointed  to  represent  the  province  in  the  General  Con- 
gress. Their  names  are  JOHN  RUTLEDGE,  CHRISTOPHER  GADSDEN, 
and  THOJU.S  LYNCH,  the  father  of  the  signer  of  the  Declaration  of 
Independence.  South  Carolina  was  the  first  province  south  of  New 
England  which  responded  to  the  call  ;  indeed,  with  the  exception 
of  Maryland  and  Delaware,  she  was  the  only  southern  province  which 
appeared  in  the  first  American  Congress.  The  royal  authority  was 
yet  too  strong  for  the  popular  party  in  North  Carolina,  Georgia,  and 
even  Virginia  herself. 

When  the  Congress  assembled  in  the  city  of  New  York,  twenty- 
eight  delegates,  representing  nine  of  the  colonies,  f  appeared.  It 
was  the  most  important  body  that  had  yet  convened — in  some  re- 
spects the  most  important  that  had  ever  convened  in  America.  A 
quaint  writer  has  styled  it  "  the  very  ovum  rdpubliaz."  It  contained 
the  germ  of  those  great  ideas,  and  the  elements  of  those  popular 
principles  which  were  about  to  burst  forth  and  shape  the  political 
and  social  destiny  of  a  continent.  It  was  composed  generally  of 
men  of  great  ability  and  worth  ;  and  yet  it  is  somewhat  remarkable 
that  among  these  twenty-eight  delegates  are  to  be  found  very  few 
of  the  future  prominent  statesmen  of  the  Revolution.  It  is  true 
Robert  R.  Livingston  of  New  York  was  there,  and  so  was  James 

•When  the  measure  was  first  proposed,  it  was  treated  with  ridicule.  One 
member  made  a  very  humorous  speech,  and  described  in  a  ludicrous  manner  the 
heterogeneous  and  discordant  materials  of  which  such  a  body  would  be  composed. 
"  New  England  will  throw  in  fish  and  onions,"  he  remarked  ;  "  the  middle  states 
flax-seed  and  flour ;  Maryland  and  Virginia  will  add  tobacco ;  North  Carolina 
pitch,  tar  and  turpentine ;  South  Carolina  rice  and  indigo,  and  Georgia  will  sprin- 
kle the  whole  composition  with  Baw-dust."  A  country  member  retorted  that 
he  would  not  choose  the  gentleman  for  his  cook,  but  nevertheless  if  the  colonies 
proceeded  judiciously,  they  would  prepare  a  dish  fit  to  be  presented  to  any 
crowned  head  in  Europe. 

f  The  three  southern  colonies  above  mentioned,  and  New  Hampshire,  were 
unrepresented. 


98  LIVES  OF  THE  CHIEF-JUSTICES. 

Otis  of  Massachusetts,  and  Cassar  Rodney  of  Delaware.  But  Frank- 
lin and  Hancock,  Roger  Sherman,  Samuel  Adams,  and  Robert 
Morris  were  none  of  them  present ;  nor  (except  Rutledge  himself,) 
were  any  of  those  celebrated  revolutionary  orators  who.  ten  years 
later  electrified  the  country  with  an  eloquence  whose  _  trumpet  tones 
have  been  borne  on  the  wings  of  the  flying  years,  to  the  ears  of  a 
second  and  a  third  generation  of  men.  Virginia's  gifted  sons  were 
absent  from  the  Convention.  The  silvery  tones  of  Lee,  whose  classic 
diction  and  copious  eloquence  won  for  him  the  title  of  the  Cicero  of 
America,  were  not  heard  in  that  body,  nor  the  voice  of  Henry, 

"  the  forest-born  Demosthenes, 

Whose  thunder  shook  the  Philip  of  the  seas." 

Nor  was  John  Adams  there,  equal  in  intellect  to  either,  and  per- 
haps superior  to  both  in  powers  of  sarcasm  and  of  bitter,  scathing, 
terrible  denunciation.  Hamilton  was  scarcely  out  of  his  nurse's 
arms,  and  Edward  Rutledge  was  yet  a  boy  at  school ;  Ellsworth  was 
in  his  senior  year  at  College  ;  Jay  was  quietly  engaged  in  reading  law; 
at  New  York,  and  Jefferson  was  angling  in  Virginia,  or  perhaps  dream- 
ing in  his  office  at  Devils-burg,*  upon  metaphysics  or  political  philosophy. 

In  the  midst,  then,  of  these  twenty-eight  steady,  solid,  unpretend- 
ing representatives  of  the  colonies,  John  Rutledge,  at  the  age  of 
twenty-six,  and  the  youngest  member  of  the  body,  stood  up  in  this 
first  Continental  Congress,  foremost  among  the  opponents  of  the 
arbitrary  measures  of  Great  Britain.  What  was  his  precise  share 
in  the  deliberations  of  this  body,  we  have  now  no  means  of  deter- 
mining. The  official  journal,  which  has  been  published,  is  little  more 
than  a  brief  minute  of  the  daily  proceedings  of  the  Congress.  Enough 
appears  from  it,  however,  and  from  other  sources,  to  justify  the  con- 
clusion that  he  was  one  of  the  most  prominent  as  well  as  one  cf  the 
ablest  members  of  the  Convention.  Of  the  three  committees  which 
were  appointed,  he  was  made  chairman  of  the  one  charged  with  the 
duty  of  preparing  an  address  to  the  Lords  in  Parliament.  This  duty 
was  promptly  performed,  and  the  address,  it  is  believed,  is  from  his 
pen. 

The  Congress  commenced  its  session  on  the  7th,  and  closed  on  the 

*  The  name  he  applied  to  the  ancient  metropolis  of  Virginia. 


JOHN  RUTLEDGB.  99 

24th  of  October,  1765.  Rutledge  shared  largely  in  all  its  deliberar 
tious.  The  brilliancy  of  his  genius,  the  boldness  of  his  ideas,  the 
extent  and  variety  of  his  information,  and  the  beanty  and  power  of 
his  diction,  all  together  made  a  deep  impression  upon  the  body  of 
which  he  was  a  member.  He  had  come  among  them  unheralded 
and  unknown  ;  he  left  behind  him  a  reputation  of  which  any  man 
might  be  pVoud.  "  The  members  of  the  distant  provinces  were  sur- 
prised at  the  eloquence  of  the  young  member  from  South  Carolina," 
says  Dr.  Ramsey.  Nothing  great,  "neither  wit  nor  wisdom,"  from 
that  province,  it  seems,  had  been  expected,  and  their  surprise  was 
complete  at  witnessing  the  surpassing  ability  of  one  of  its  delegates, 
and  he  too  the  youngest  member  of  the  Congress.  In  short,  Rut- 
ledge  made  a  sensation  at  this  first  meeting  of  the  colonial  delegates, 
as  he  did  upon  all  occasions,  and  in  all  public  bodies,  whenever  and 
wherever  he  chose  to  mingle  in  debate. 

From  the  accounts  that  have  been  left  us  by  his  cotemporaries, 
we  may  gain  something  of  an  idea  of  his  mode  of  speaking,  and  his 
style  as  a  debater.  It  would  seem  from  these  accounts  that  he  had 
a  tinge  of  that  haughty  manner,  and  all  that  rapid  and  vehement 
impetuosity — that  passionate  and  earnest  emphasis — which  charac- 
terized the  later  efforts  of  the  great  Maryland  advocate,  William 
Pinkney  ;  but  his  action  was  less  violent  and  his  gesture  more  grace- 
ful. He  had  a  copious  flow  of  language  at  command,  and  much  too 
of  that  quick  repartee  and  lively  play  of  fancy  and  wit  which  occa- 
sionally broke  like  a  gleam  of  sunshine  over  the  gorgeous  but  closely 
woven  web  of  one  of  Wirt's  forensic  arguments.  Dr.  Ramsay,  a 
cotemporary,  and  who  must  have  heard  him  frequently,  both  at  the 
bar  and  in  the  Legislature,  thus  describes  him  : 

"In  both  capacities  he  was  admired  as  a  public  speaker.  His 
ideas  were  clear  and  strong,  his  utterance  rapid  but  distinct ;  his 
voice,  action,  and  energetic  manner  of  speaking  forcibly  impressed 
bis  sentiments  on  the  minds  and  hearts  of  all  who  heard  him.  At 
reply  he  was  quick — instantly  comprehending  the  force  of  an  objec- 
tion— and  saw  at  once  the  best  mode  of  weakening  or  repelling  it. 
He  successfully  used  both  argument  and  wit  for  invalidating  the 
observations  of  his  adversary.  By  the  former  he  destroyed  or 
by  the  latter  he  placed  them  in  so  ludicrous 


100  LIVES  OF  THE  CHIEF-JUSTICES. 

a  point  of  light  that  it  often  convinced,  and  scarcely  ever  failed  of 
conciliating  and  pleasing  his  hearers.  Many  were  the  triumphs  of  his 
eloquence  at  the  bar  and  in  the  Legislature  ;  and  in  the  former  case 
probably  more  than  strict  impartial  justice  would  sanction  ;  for  judges 
and  jury,  counsel  and  audience,  hung  upon  his  accents."  The  same 
excellent  authority  notices  the  distinction  in  oratorical  power  between 
the  two  brothers,  John  and  Edward  :  "  Demosthenes  seemed  to  be  the 
model  of  the  one,"  he  remarks,  "  Cicero  of  the  other.  The  eloquence 
of  the  elder,  like  a  torrent,  bore  down  all  opposition,  and  controlled 
the  passions  of  the  hearer  ;  that  of  the  younger  was  soothing,  per- 
suasive, and  made  willing  proselytes."* 

Rutledge  returned  to  Charleston  at  the  close  of  this  brief  session 

*  The  following  extract  relative  to  Mr.  Edward  Rutledge  is  from  Garden's 
Anecdotes  of  the  Revolution : 

"  If  the  Demosthenian  eloquence  of  John  Rutledge  was  more  impetuous  and 
commanding,  the  Ciceronian  style  of  Edward  was  more  persuasive.  There  was  a 
suavity  in  his  manner,  and  conciliating  attraction  in  his  arguments,  that  had  fre- 
quently the  effect  of  subduing  the  prejudices  of  the  unfriendly,  and  which  never 
failed  to  increase  the  ardor  and  inflexibility  of  steady  friends.  The  eloquence  of 
John  Rutledge  was  as  a  rapid  torrent ;  that  of  Edward  as  a  gentle  and  smoothly 
gliding  stream — the  first  hurried  you  forward  to  the  point  it  aimed  at  with  pow- 
erful impetuosity — the  last  conducted  to  it  with  fascinations  that  made  every  pro- 
gressive step  appear  enchanting.  Civil  occupations  engaged  the  attention  of  the 
elder  brother.  The  younger,  in  the  field,  as  well  as  in  the  cabinet,  obtained  cele- 
brity. In  the  well-contested  action  on  Port  Royal  Island,  he  had  the  command 
of  one  of  the  field  pieces  which  essentially  contributed  to  the  victory,  and  justly 
received  the  thanks  of  the  General  who  commanded.  After  the  capture  of 
Charleston,  the  influence  both  of  his  talents  and  example  did  not  escape  the  pene- 
tration of  the  British  commanders.  They  plainly  saw  how  much  a  man  of  such 
superior  ability  would  be  looked  up  to  by  the  suffering  multitude  ;  and  to  destroy 
the  effect,  by  an  act  of  as  great  tyranny  as  ever  was  exercised,  removed  him  to 
St.  Augustine.  The  cheerfulness  of  his  natural  disposition,  his  conciliating  atten- 
tion to  his  companions  in  this  situation  of  unmerited  persecution,  contributed  in 
no  trifling  degree  to  cherish  hope,  and  oppose  intrepid  resistance  to  every  encroach- 
ment of  despondency.  After  his  exchange  and  freedom  from  captivity,  he  was 
elected  a  member  of  the  Legislature  of  the  State  ;  and  at  the  conclusion  of  the 
war  served  in  the  Council,  aiding  the  administration  of  Governor  Mathews." 

Mr.  E.  Rutledge  was  one  of  the  signers  of  the  Declaration  of  Independence, 
and  served  with  distinction  through  several  sessions  of  the  Continental  Congress. 
He  was  elected  Governor  of  South  Carolina  in  1798,  and  died  two  years  after- 
wards, universally  regretted  as  he  was  beloved  by  the  people  of  his  native  State, 


JOHN  RUTLEDGE.  101 

of  the  first  Congress,  with  a  reputation  greatly  enhanced.  He  re- 
turned to  continue  the  practice  of  his  profession,  in  which  he  had 
already  laid  the  sure  foundation  for  success  and  eminence.  The 
Stamp  Act  repealed,  he  mingled  no  farther  in  politics,  except  so  far 
as  to  discharge  the  duties  of  a  member  of  the  provincial  Assembly, 
in  which  station  he  had  been  placed  by  the  suffrages  of  his  fellow 
citizens.  His  professional  success  continued  to  grow  upon  him,  and 
his  reputation  to  increase  with  years.  At  the  opening  of  the  Re- 
volution, when  he  was  again  called  to  relinquish  his  business,  he  stood 
confessedly  at  the  head  of  the  South  Carolina  bar.  It  is  to  be 
regretted  that  we  have  so  few  data  for  supplying  this  portion  of 
Rutledge's  career.  Like  the  otner  colonies,  the  records  of  South 
Carolina  colonial  jurisprudence  are  few  and  measrre.  Reports  of 
cases  were  not  commenced  until  some  time  after  the  Revolution,  and 
the  opinions  of  courts,  if  any  were  written  at  that  day,  with  the 
arguments  of  counsel,  have  all  passed  away.  It  appears  that  ill 
Rutledge's  time  there  were  no  courts,  judges,  or  juries  beyond  the 
limits  of  Charleston.  A  single  provost  marshal  was  charged  with 
the  service  of  process  over  the  whole  province.  The  intolerable  in- 
convenience to  the  people  in  the  back  country  of  attending  courts 
at  such  a  distance,  led  them  frequently  to  take  the  law  into  their 
own  hands,  and  inflict  summary  punishment  upon  outrageous  offend- 
ers. This  evil,  however,  was  remedied  in  a  measure  by  the  passage 
of  an  act  in  1769,  creating  seven  new  district  courts.  The  organi- 
zation of  these  new  courts,  while  relieving  suitors,  of  course  added 
greatly  to  the  labors  of  the  practicing  advocate,  who  was  obliged 
to  ride  the  circuit  in  his  attendance  upon  them.  Business,  doubt- 
less, increased  in  a  corresponding  degree,  and  to  such  members  of 
the  profession  as  Rutledge,  neither  fees  nor  clients  were  ever  want- 
ing. Still,  notwithstanding  the  increase  of  courts,  at  that  early  day 
in  South  Carolina,  the  amount  of  litigation  was  quite  limited.  The 
greatest  number  of  judgments  ever  entered  up  in  Charleston  in  any 
one  year  before  the  Revolution,  was  390,  and  the  average  of  seven 
years  immediately  preceding  the  Revolution,  236.  These  included 
all  the  judgments  entered  up  in  the  colony  ;  for  although  new  courts 
were  organized  by  the  act  of  1169,  yet  they  were  not  courts  of 
original  jurisdiction  or  of  record,  and  all  the  judgments  obtained 


102  LIVES  OF  THE  CHIEF-JUSTICES. 

in  the  country  districts  were  entered  up  in  Charleston.*  This  state- 
ment, therefore,  shows  very  correctly  the  extent  of  legal  business  in 
the  colony  during  the  period  of  Rutledge's  practice.  From  his 
great  abilities  and  success  as  a  nisi  prius  lawyer,  he  no  doubt  par- 
ticipated to  a  large  degree  in  all  the  business  of  the  courts,  and  was 
probably  engaged,  on  one  side  or  the  other,  in  every  important  liti- 
gated suit.  Many  of  these  questions  would  no  doubt  now  be  of 
peculiar  interest,  as  exhibiting  the  state  of  colonial  jurisprudence  at 
that  time,  and  the  manner  of  Rutledge's  demeanor  at  the  bar.  It 
seems,  however,  impossible  to  revive  them,  except  through  the  dim 
and  uncertain  light  of  traditionary  accounts  ;  I  therefore  take  leave 
of  Rutledge  as  an  advocate  at  the  bar,  doing  so  with  the  less  regret, 
as  we  are  now  about  to  follow  him  upon  that  broad  and  extended 
theatre  of  public  usefulness  which  the  Revolution  opened  before 
him,  and  in  which  the  most  shining  qualities  of  his  genius  were  ex- 
hibited. 

The  revolutionary  movements  in  South  Carolina  may  be  said  to 
date  from  that  general  Convention  of  the  citizens  of  the  colony 
which  assembled  at  Charleston  on  the  6th  July,  1774.  At  this 
Convention  the  proceedings  of  the  parliament  of  Great  Britain 
against  the  province  of  Massachusetts  were  considered,  and  strong 
resolutions  passed  in  favor  of  sustaining  the  rights  of  the  colonies 
against  the  unjust  pretensions  of  the  crown.  In  order  to  lay  the 
foundation  for  a  permanent  organization,  the  Convention  appointed 
a  general  committee  of  ninety-nine  persons,  to  act  as  a  committee 
of  correspondence,  and  with  full  powers  to  do  every  thing  necessary 
to  carry  into  eifect  the  resolutions  then  passed.  The  Convention 
also  appointed  five  delegates  "  to  meet  the  deputies  of  the  several 
colonies  in  North  America  in  General  Congress."  These  delegates 
were  John  Rutledge,  Edward  Rutledge,  Henry  Middleton,  Christo- 
pher Gadsden,  and  Thomas  Lynch.  They  of  course  acted  under  no 
legal  and  constitutional  authority,  but  simply  as  the  representatives 
of  a  Convention  of  the  people  which  doubtless  indicated  the  public 
sentiment  of  the  colony.  Of  this  Convention  the  Rutledges  had 
been  members.  Upon  the  motion  to  appoint  delegates  to  the  Gen- 
eral Congress,  an  effort  was  made  to  instruct  them  as  to  the  extent 
*  1  Ramsay  Hist.  South  Carolina,  p.  158. 


JOHN  RUTLEDGE.  1Q3 

to  which  they  might  go  in  pledging  the  support  of  their  colony  to  the 
Bostonians.  This  proposition  was  vigorously  and  successfully  corn- 
batted  by  John  Rutledge.  He  desired  the  South  Carolina  dele- 
gates to  go  into  the  Congress  untrammelled  by  instructions,  and  un- 
limited in  powers.  "These  views  he  enforced  in  a  speech  of  tran- 
scendant  ability — one  of  those  impetuous  and  soul-stirring  harangues 
which,  like  the  impassioned  appeals  of  the  great  Virginia  orator, 
infused  a  new  courage  into  the  hearts  of  the  people,  and  opened 
their  minds  to  a  full  comprehension  of  those  great  issues  which  were 
now  to  be  encountered.  It  was  the  first  blast  of  the  revolutionary 
trumpet  from  South  Carolina — not  merely  a  feeble  re-echo  of  those 
warlike  notes  which  were  wafted  on  every  breeze  from  the  provinces 
of  Massachusetts  and  Virginia — but  a  bold  and  hearty  response, 
ringing  out  loud  and  clear,  like  the  clarion  notes  with  which  the 
knight  as  he  entered  the  tournament  responded  to  the  challenge  of 
his  adversary.  Rutledge  clearly  saw  that  the  crisis  had  arrived 
when  it  was  necessary  to  act,  and  to  act  with  vigor  and  firmness. 
The  proposal  to  limit  the  powers  of  the  delegates  he  believed  would 
defeat  the  object  of  their  appointment.  He  was  satisfied  that  a 
Congress  of  the  colonies  for  consultation  merely  would  amount  to 
nothing.  It  was  necessary  therefore  that  the  delegates  should  have 
plenary  power  to  act,  limited  by  nothing  but  their  own  discretion, 
as  the  emergency  might  require.  These  views  'he  enforced  in  a 
speech  of  overwhelming  eloquence  and  unanswerable  argument.  He 
infused  his  own  daring  spirit  into  those  who  had  hitherto  been  tim- 
orous and  wavering.  He  silenced,  if  he  did  not  convince,  every 
opponent.  On  that  day,  undoubtedly,  John  Rutledge  gave  its  first 
impulse  to  the  Revolution  in  South  Carolina ;  and  perhaps  it 
may  be  added,  that  on  that  day,  too,  he  placed  himself  at  its  head. 
"What  shall  be  done  with  the  delegates  if  they  betray  their  con- 
stituents, and  pledge  the  colony  to  a  course  inconsistent  with  the 
public  interests?"  demanded  an  opponent.  Rutledge  turned  upon 
him,  and  with  a  passionate  gesture,  a'nd  an  eye  flashing  indignation, 
exclaimed,  "Hang  them!  hang  them!"  It  was  idle  to  resist  such 
appeals,  or  to  combat  an  energy  and  resolution  like  this.  The 
views  of  Rutledge  prevailed,  and  the  delegates,  of  whom  he  was 
one,  were  appointed  under  no  instructions,  or  pledge  of  fidelity  what- 


104:  LIVES  OF  THE  CHIEF-JUSTICES. 

ever,  and  with  unlimited  powers.  The  resolution  of  appointment 
clothed  them  "  with  full  power  and  authority,  in  behalf  of  us  and 
our  constituents,  to  concert,  agree  to,  and  effectually  to  prosecute 
such  legal  measures  (by  which  we  for  ourselves  and  them  most  sol- 
emnly engage  to  abide,)  as  in  the  opinion  of  the  said  deputies  and 
of  the  deputies  so  to  be  assembled  shall  be  most  likely  to  obtain  a 
repeal  of  the  said  acts,  and  a  redress  of  these  grievances." 

A  few  days  after  this,  Rutledge  and  his  associates  sailed  for  Phil- 
adelphia. On  their  arrival  they  were  joined  by  deputies  from  the 
other  provinces,  clothed  with  similar  powers,  and  soon  after  the 
memorable  Congress  of  1774  commenced  its  session.  The  proceed- 
ings of  this  body  are  matters  of  history,  and  it  is  not  necessary  to 
detail  or  discuss  them  here.  It  was  in  every  sense  an  extraordinary 
body  of  men.  Most  of  them  were  still  strangers  to  each  other,  and 
the  great  majority  of  them  had  not  yet  acquired  even  a  provincial 
reputation.  Only  nine  of  the  delegates  to  the  Congress  of  1765 
had  been  returned,  namely  Eliphalet  Dyer,  of  Connecticut,  Philip 
Livingston,  of  New  York,  John  Dickinson  and  John  Morton,  of 
Pennsylvannia,  Caesar  Rodney  and  Thomas  M'Kean,  of  Delaware, 
and  Gadsden,  Rutledge  and  Lynch,  of  South  Carolina.  But  in  the 
list  of  the  new  members  were  numbered  some  whose  names  were 
destined  to  become  famous  in  the  history  of  their  country.  Among 
the  delegates  from  Virginia  was  a  modest  and  unobtrusive  gentle- 
man, in  whom  the  penetrating  eye  of  Patrick  Henry  had  detected 
"  the  GREATEST  MAN  on  the  floor " — Col.  George  Washington. 
HENRY  himself  was  already  a  man  of  note,  and  had  acquired  more 
than  a  provincial  reputation  ; — and  among  his  colleagues  was  one 
who  might  in  some  degree  claim  to  dispute  with  him  the  palm  of 
eloquence,  RICHARD  HENRY  LEE.  In  the  delegation  from  Massa- 
chusetts Bay  was  an  active,  resolute,  ambitious  man — a  man  of 
extensive  information,  great  energy,  and  indefatigable  industry — 
JOHN  ADAMS — destined  to  act  no  inconsiderable  part  in  the  grand 
drama  that  was  about  to  open.  THOMAS  JOHNSON,  subsequently  a 
Justice  of  the  Supreme  Court  of  the  United  States,  was  a  member 
of  the  Maryland  delegation  ;  and  from  the  same  State  another  future 
Justice  of  the  Supreme  Court,  that  able  and  singularly  gifted,  but 
wayward  and  erratic  genius,  SAMUEL  CHASE.  New  York  had  sent 


JOHN  RUTLEDGE.  105 

among  her  eight  delegates,  a  young  mail  who  was  thought  to  pos- 
sess some  talent  and  now  made  his  debut  in  public  life — JOHN  JAY — 
the  future  Chief-Justice  ;  and  among  the  five  delegates  from  South 
Carolina  another  still  younger  man  appeared,  EDWARD  RUTLEDGE, 
then,  only  twenty-five  years  of  age,  who  had  come  with  his  brother 
John  from  Charleston,  to  assist  in  these  serious  deliberations,  and 
who  proved  himself,  in  real  capacity  aud  influence,  as  well  as  in 
eloquence  of  speech,  inferior  to  few  men  in  that  assembly.  The 
name  of  ROGER  SHERMAN  appeared  in  the  list  of  the  Connecticut 
delegates — that  of  SAMUEL  ADAMS  from  Massachusetts,  JOHN  SUL- 
LIVAN from  New  Hampshire,  and  WILLIAM  LIVINGSTON  form  New 
Jersey. 

Such  were  the  men  with  whom  John  Rutledge  now  found  himself 
associated.  To  assume  and  maintain  a  commanding  position  in  a 
body  composed  of  materials  like  this,  required  no  ordinary  ability. 
But  Rutledge  was  fully  equal  to  the  effort.  As  an  orator  and  a 
statesman,  few  men  attained  a  prouder  position  in  that  body.  In 
the  language  of  Patrick  Henry,  "  he  shone  with  superior  lustre." 
His  powers  of  eloquence  are  vouched  for  by  no  meaner  authority 
than  Mr.  Henry  himself.  Being  questioned,  on  his  return  to  Vir- 
ginia, relative  to  the  character  of  the  Congress,  and  of  the  individu- 
als composing  it,  and  particularly  whom  he  thought  its  greatest 
man,  he  replied,  "  If  you  speak  of  eloquence,  John  Rutledge  of  South 
Carolina  is  the  greatest  orator  ;  but  if  you  speak  of  information  and 
sound  judgment,  Col.  Washington  is  unquestionably  the  greatest 
man  on  the  floor."  *  Such  was  the  estimate  of  Rutledge's  powers 
by  the  great  orator  of  Virginia  ;  and  the  accuracy  of  Mr.  Henry's 
judgment  %upon  a  matter  of  this  kind  cannot  be  questioned.  To  be 
assigned  by  him  the  first  place  in  a  body  containing  such  parlia- 
mentary orators  as  Adams  and  Lee,  is  no  common  praise  ; — and  the 
tribute  is  the  more  valuable,  inasmuch  as  it  was  frankly  and  freely 
offered  to  one  who,  if  not  already,  might  some  day,  perhaps,  become 
a  rival.  It  is  Cicero  speaking  the  praises  of  Crassus. 

At  the  close  of  the  deliberations  of  this  Congress,  Rutledge  and 
his  associates  returned  to  South  Carolina.  In  the  mean  time,  the 
Executive  Committee  had  snmmoned  the  first  provincial  Congress 
*  Wirt's  Life  of  Patrick  Henry.  Garden's  Anecdotes. 


10(3  LIVES  OF    THE  CHIEF-JUSTICES. 

of  the  colony,  composed  of  representatives  elected  by  the  people  in 
every  parish  and  district.  This  Assembly  of  course  had  no  legal 
or  constitutional  existence.  It  was  entirely  revolutionary  in  its  cha- 
racter, but  as  representing  the  great  mass  of  the  people,  its  acts 
and  proceedings  were  regarded  as  of  the  highest  authority.  It  met 
on  the  llth  January,  1775,  and  immediately  took  into  consideration 
the  proceedings  of  the  Continental  Congress  at  Philadelphia.  It 
was  upon  this  occasion  that  Rutledge  and  his  associates  appeared 
before  the  Assembly  to  render  an  account  of  their  proceedings. 
Some  objections  had  been  taken  to  a  clause  in  the  non-intercourse 
act  with  Great  Britain,  excepting  from  the  operation  of  the  act  the 
exporting  of  rice  to  Europe.  Rutledge,  who  with  three  of  his 
associates  had  voted  in  favor  of  this  exception,  now  undertook  the 
defence  of  himself  and  colleagues,  and  explained  the  object  and  de- 
sign of  the  exception.  His  speech  upon  this  occasion  was  very  able 
and  ingenious,  and  withal  was  attended  with  the  most  gratifying 
results.  The  assembly,  without  a  dissenting  voice,  returned  public 
thanks  to  their  late  delegates,  approved  their  proceedings,  and  re- 
solved to  carry  them  into  execution.  The  Assembly  also  re-appointed 
Rutledge  and  his  four  associates  to  represent  South  Carolina  in  the 
next  General  Congress. 

The  autobiography  of  Mr.  John  Adams  shows  that  Rutledge, 
even  at  this  early  period,  was  the  warm  advocate  of  measures  tend- 
ing toward  colonial  independence,  and  far  in  advance  of  most  of  his 
colleagues.  On  the  2nd  of  June,  1775,  the  President  laid  before 
Congress  a  letter  from  the  provincial  Convention  of  Massachusetts, 
requesting  Congress,  among  other  things,  to  favor  them  with  "  expli- 
cit advice  respecting  the  taking  up  and  exercising  the  powers  of 
civil  government,"  &c.  The  vigorous  and  impulsive  mind  of  John 
Adams  had  already  anticipated  the  subject.  In  his  opinion,  Con- 
gress ought  at  once  to  recommend  to  the  people  of  every  colony  to  call 
conventions  of  representatives  immediately,  and  set  up  governments 
of  their  own,  under  their  own  authority  ;  for  THE  PEOPLE,  he  thought, 
were  the  source  of  all  authority,  and  ORIGINAL  OF  ALL  POWER. 
"These  were  new,  strange,  and  terrible  doctrines,"  he  remarks,  "to 
the  greatest  part  of  the  members  ;  but  not  a  very  small  number 
heard  them  with  apparent  pleasure,  and  none  more  than  Mr.  John 


JOHN  RUTLEDGE. 

Rutledge  of  Sofcth  Carolina,  and  Mr.  John  Sullivan  of  New  Hamp- 
shire." * 

John  Adams  was  no  half-way  revolutionist ;  he  had  the  ring  of 
the  true  metal  in  him  ;  while  others  lagged  in  the  rear,  he  pressed 
forward  to  the  van,  in  the  very  front  rank  of  this  revolutionary 
movement ;  and  by  his  side  stood  John  Rutledge  of  South  Carolina. 
Let  us  observe  the  further  proceedings  upon  this  project  for  "  inde- 
pendent colonial  governments,"  brought  forward  in  Congress  more 
than  a  year  before  the  Declaration  of  Independence. 

The  next  day  a  committee  was  appointed  on  the  Massachusetts 
memorial,  of  which  Rutledge  was  chairman.  They  had  several  con- 
ferences with  the  Massachusetts  delegates,  and  reported  on  the  1th 
of  June,  in  substance,  that  in  their  opinion  the  royal  Governor  and 
Lieutenant-Governor  ought  to  be  considered  as  absent,  and  that  it 
be  recommended  to  the  provincial  Congress  of  Massachusetts  to  take 
measures  for  choosing  an  assembly  or  council  to  exercise  the  powers 
of  Government,  until  "a  Governor  of  his  majesty's  appointment  will 
consent  to  govern  the  colony  according  to  its  charter."  Rutledge  en- 
tered fully  into  all  these  views.  He  had  frequent  conferences  with 
Adams  on  the  subject,  and  they  fully  discussed  together  the  im- 
portant question  as  to  what  form  of  government  it  was  proper  to 
adopt,  as  the  government  of  a  free  State.  "  Not  long  after  this," 
says  Mr.  Adams,  "  Mr.  John  Rutledge  returned  to  South  Carolina, 
and  Mr.  Sullivan  went  with  Gen.  Washington  to  Cambridge,  so  that 
I  lost  two  of  my  able  coadjutors.  But  we  soon  found  the  benefit  of 
their  co-operation  at  a  distance." 

On  the  return  of  Rutledge  to  Congress  the  subject  was  again 
agitated.  An  animated  debate  sprang  up,  October  26th,  on  the 
question  of  instructing  the  New  Hampshire  delegation,  namely,  that 
Congress  should  direct  "a  method  for  our  administering  justice  and 
regulating  our  civil  police."  In  this  discussion  Adams  and  Rut- 
ledge  took  the  lead,  and  were  ably  sustained  by  Lee,  Gadsden,  Sher- 
man, and  Dyer.  At  the  close  of  the  debate  a  committee  of  five 
was  appointed,  of  which  Rutledge  was  chairman,  and  Adams  a 
member,  which  reported,  November  3d,  recommending  the  establish- 
ment of  an  independent  government  by  New  Hampshire  during 
*  Life  and  Works  of  John  Adams,  Vol.  III.  p.  16. 


108  LIVES  OF    THE  CHIEF-JUSTICES. 

"the  continuance  of  the  present  dispute."  Rutledge,  who,  says 
Adams,  was  now  "  completely  with  us  in  our  desire  of  revolutioniz- 
ing all  the  governments,"  immediately  brought  forward  some  repre- 
sentations from  his  own  State,  which  were  referred  to  a  select  com- 
mittee of  five.  This  committee  reported  the  next  day,  recommending 
a  course  precisely  similar  to  that  which  had  been  recommended  in 
the  case  of  New  Hampshire.*  Let  us  now  see  how  this  revolutionary 
movement,  instituted  by  Rutledge  in  the  Continental  Congress,  was 
carried  out  in  his  own  State. 

No  revolution  was  ever  effected  with  greater  unanimity,  or  with 
more  order  and  regularity  than  the  revolution  in  South  Carolina  ; 
and  the  reason  assigned  is  that  the  leading  men  in  every  part  of  the 
province,  from  the  first  moment  of  the  contest,  exerted  themselves 
in  the  cause  of  their  country,  and  very  few  of  them  took  sides  with 
the  royalists.  Thus,  it  appears  that  the  Constitutional  Assembly, 
under  the  royal  government,  in  1174,  without  a  dissenting  voice, 
sanctioned  the  appointment  of  Rutledge  and  his  associates  as  dele- 
gates to  Congress.  In  the  spring  of  1715  his  majesty's  justices 
made  their  last  circuit,  on  which  occasion  WILLIAM  HENRY  DRAYTON, 
the  only  one  of  the  judges  born  in  America,  in  charging  the  grand 
jury,  distinctly  avowed  the  sentiments  of  the  popular  leaders. j"  In- 
deed it  may  be  said  that  after  the  reception  of  the  news  of  the  battle 
of  Lexington,  in  the  spring  of  1775,  there  was  no  longer  any  royal 
government  or  royal  authority  in  South  Carolina.  The  revolution 
was  already  accomplished.  And  although  the  royal  Governor,  Lord 
William  Campbell,  refused  to  recognize  the  Provincial  Congress, 
and  returned  the  haughty  answer  to  their  address,  "  I  know  of  no 
representatives  of  the  people  of  this  province,  except  those  consti- 
tutionally convened  in  the  General  Assembly,"  yet  the  Provincial 
Congress  was  none  the  less  de  facto  the  ruling  authority  in  the  pro- 
vince. 

On  the  reception  of  the  news  of  the  battle  of  Lexington,  the  Pro- 

*  Life  and  Works  of  John  Adams.    Vol.  HI.  p.  20-22. 

t  Soon  after  this,  the  other  judges,  having  refused  to  sign  the  articles  of  associ- 
ation, were  put  under  arrest ;  the  doors  of  the  courts  of  justice  were  thereupon 
closed,  and  so  remained  for  a  twelvemonth,  and  until  re-opened  by  Judge  Drayton 
under  the  authority  of  the  new  Constitution. 


JOHN  RUTLEDGK  109 

% 

vincial  Congress  was  summoned  by  the  committee  to  meet  in  twenty- 
three  days.  On  the  second  day  after  their  meeting,  the  delegates 
passed  a  resolution  wherein  they  declared  that  they  united  them- 
selves " under  every  tie  of  religion  and  honor"  in  defence  of  their 
country — "  hereby  solemnly  engaging,  that  whenever  our  continental 
or  provincial  councils  shall  decree  it  necessary,  we  will  go  forth,  and 
be  ready  to  sacrifice  our  lives  and  fortunes  to  secure  her  freedom 
and  safety."  The  character  of  the  men  who  engaged  in  this  work 
was  the  best  guaranty  of  its  final  accomplishment.  Nearly  every 
prominent  man  in  the  colony  pressed  forward  into  actual  service. 
The  Council  of  Safety  was  composed  of  such  distinguished  citizens 
as  Henry  Laureus,  Charles  Pinckney,  Arthur  Middleton,  William 
Henry  Drayton,  and  others  of  equal  worth  and  ability.  When  it 
was  proposed  to  raise  two  regiments  of  foot  and  a  regiment  of  raii- 
gers,  for  the  public  defence,  many  gentlemen  of  the  first  families  in 
Carolina  pressed  forward  for  commissions,  and  the  applicants  were 
four  times  as  numerous  as  could  be  employed.  The  well  known 
names  of  Gadsden,  Moultrie,  and  Sumpter,  appear  in  the  list  of  colo- 
nels commissioned  by  this  Congress,  and  among  the  captains,  Fran- 
cis Marion,  Thomas  Pinckney,  Charles  Cotesworth  Pinckney,  Tho- 
mas Lynch,  Jr.,  and  Francis  Huger.  Thus  it  was  that  by  imper- 
ceptible degrees  the  whole  authority  of  the  State,  legislative  aud 
judicial,  as  well  as  executive,  was  transferred  to  the  Provincial  Con- 
gress, and  a  new  government  introduced,  by  the  common  consent  of 
the  people. 

The  ancient  forms  of  the  royal  Constitution,  however,  were  still 
preserved,  but  the  impropriety  of  this  soon  became  manifest.  Ac- 
cordingly, in  the  spring  of  1716,  South  Carolina,  acting  upon  the 
recommendation  which,  as  we  have  just  seen,  had  already  been 
given  by  Congress,  threw  off  the  shackles  of  colonial  servitude,  and 
adopted  an  independent  Constitution  and  form  of  government — 
thus  virtually  asserting  her  own  independence  some  months  before 
the  declaration  of  July  4th,  1776. 

In  this  great  work,  John  Rutledge  acted  a  most  important  part. 
Early  in  the  spring  he  had  returned  with  two  of  his  colleagues  from 
attending  the  American  Congress  in  Philadelphia.  The  Provincial 
Congress,  then  in  session,  welcomed  the  three  delegates  with  the 


HO  LIVES  OF  THE  CHIEF-JUSTICES. 

most  flattering  marks  of  attention  ;  and  the  President,  Judge  Dray- 
ton,  was  directed  to  address  them  in  the  name  of  the  Congress,  and 
present  its  thanks  for  their  important  services.  Rutledge  thereupon 
took  his  seat  in  this  Assembly,  and  immediately  directed  his  atten- 
tion to  the  formation  of  the  proposed  plan  of  government. 

The  measure  was  not  carried  without  a  warm  and  spirited  strug- 
gle. A  desire  for  a  reconciliation  was  still  openly  professed  by  all, 
and  doubtless  sincerely  entertained  by  many.  Some  denied  the 
necessity  of  any  independent  Constitution  ;  some  were  willing  to 
establish  a  temporary  government,  as  recommended  by  Congress  ; 
while  the  bolder  and  more  ardent  popular  leaders  advocated  a  total 
and  permanent  change.  While  the  measure  was  yet  under  conside- 
ration, new  acts  of  aggression  on  the  part  of  Great  Britain  turned 
the  scale,  and  silenced  all  opposition.  An  independent  Constitution 
was  resolved  on.  Rutledge  was  placed  upon  the  committee  of 
eleven  charged  to  prepare  and  report  a  plan.  Still  the  more  mode- 
rate men  and  friends  of  a  reconciliation  achieved  a  partial  triumph, 
for  it  was  decided  after  a  long  and  exciting  debate,  that  the  new 
government  should  be  temporary  merely,  and  should  exist  only  "  till 
a  reconciliation  between  Great  Britain  and  the  colonies  should  take 
place." 

On  the  24th  of  March,  Rutledge  made  a  final  report  upon  the 
subject  in  charge  of  the  committee,  and  two  days  after,  the  new  Con- 
stitution was  adopted.  It  is  said,  with  truth,  doubtless,  that  to 
Mr.  Rutledge's  activity  and  grasp  of  mind,  his  political  acuteness 
and  great  legal  knowledge,  the  people  of  South  Carolina  were  in- 
debted for  most  of  the  provisions  of  this  first  Constitution.  The 
preamble,  in  which  are  set  forth  at  length  the  grievances  of  the 
Colonies,  and  the  causes  inducing  the  Assembly  to  adopt  the  new  Con- 
stitution, is  entirely  the  production  of  his  pen.  "It  is  remarkable," 
says  a  writer,  "  not  less  because  of  its  compactness  and  comprehen- 
siveness, than  because  it  embodies  in  nearly  the  same  order,  and 
sometimes  in  the  same  phraseology,  the  very  matter  which  in  a  more 
condensed  form,  was  subsequently  employed  by  Mr.  Jefferson  in  the 
famous  Declaration."  It  closes  with  the  following  compact  and  ner- 
vous sentences  :  "  And  whereas  the  judges  of  the  courts  of  law  here 
have  refused  to  exercise  their  respective  functions,  so  that  it  is  be- 


JOHN  RTJTLEDGE.  m 

t 

come  indispensably  necessary  that  during  the  present  situation  of 
American  affairs,  and  until  an  accommodation  of  the  unhappy  differ- 
ences between  Great  Britain  and  America  can  be  obtained,  (an 
event  which,  though  traduced  and  treated  as  rebels,  we  still  ear- 
nestly desire,)  some  mode  should  be  established  by  common  consent, 
and  for  the  good  of  the  people,  THE  ORIGIN  AND  END  OF  ALL  GOV- 
ERNMENT, for  regulating  the  internal  polity  of  this  colony  ; — the 
Congress  being  vested  with  powers  competent  for  the  purpose,  and 
having  fully  deliberated  touching  the  premises,  do  therefore  re- 
solve," &c. 

The  legislative  authority  under  the  new  government  consisted  of 
three  branches — an  Assembly  elected  every  two  years  by  the  people, 
a  legislative  Council,  consisting  of  thirteen  members,  elected  out  of 
their  own  body  by  the  Assembly,  and  a  privy  Council,  together  with 
a  president  and  commander-in-chief,  elected  by  the  Assembly  and 
legislative  Council  from  among  themselves  or  the  people  at  large. 
The  executive  authority  was  vested  in  the  president,  with  the  right 
to  appoint  all  officers  in  the  army  and  navy,  except  field-officers  in 
the  army  and  captains  in  the  navy.  This  extensive  authority  was 
subsequently,  as  we  shall  see,  enlarged  in  the  hands  of  President 
Rutledge  into  complete  dictatorial  powers — powers  which,  though 
wielded  by  him  with  characteristic  energy,  were  never  perverted  or 
abused. 

The  Constitution  provided  that  the  existing  Congress  should  be 
the  first  General  Assembly  of  South  Carolina,  and  accordingly  the 
new  government  went  immediately  into  operation.  Rutledge  was 
chosen  President  without  opposition,  and  Col.  Henry  Laurens  Vice- 
President.  William  Henry  Drayton  was,  at  the  same  time,  elected 
Chief-Justice,  with  Thomas  Bee,  John  Mathews  and  Henry  Pendle- 
ton,  Esqrs.,  Associate-Justices.  An  Admiralty  Court  was  organized 
by  the  appointment  of  HUGH  RUTLEDGE,  a  younger  brother  of  the 
President,  as  judge  ;  *  and  the  Vice-President  of  the  colony,  with 

*  "  The  talents  of  Mr  Hugh  Rutledge  were  not  perhaps  equally  brilliant,  nor 
of  so  distinguished  a  cast  as  those  of  his  brothers ;  but  for  solidity  of  judgment 
and  strong  manly  sense,  he  was  not  inferior  to  either  of  them  ;  and  as  a  firm  and 
intrepid  patriot  was  pre-eminently  distinguished  by  the  cheerful  performance  of 
every  duty  to  his  country.  He,  too,  like  his  brother  Edward,  was  deemed  of 


112  LIVES   OF    THE  CHIEF-JUSTICES. 

the  privy  council,  among  whom  were  Judge  Drayton  and  Charles 
Pinckney,  exercised  for  the  time  being  the  powers  of  a  court  of 
Chancery. 

Mr.  Rutledge  being  present,  as  a  member  of  the  Assembly,  when 
elected  president  and  commander-in-chief,  immediately  delivered  the 
following  brief  extemporaneous  address  : 

"  GENTLEMEN— The  very  great,  unsolicited  and  unexpected  honor 
which  you  have  been  pleased  to  confer  on  me,  has  overwhelmed  me 
with  gratitude  and  concern.  Permit  me  to  return  you  my  most 
sincere  thanks,  for  so  distinguishing  and  unmerited  a  mark  of  your 
confidence  and  esteem.  I  have  the  deepest  sense  of  this  honor. 
The  being  called  by  the  free  suffrages  of  a  brave  and  generous  peo- 
pie,  to  preside  over  their  welfare,  is  in  my  opinion  the  highest  any 
man  can  receive.  But  dreading  the  weighty  and  arduous  duties  of 
this  station,  I  really  wish  that  your  choice  had  fallen  upon  one  bet- 
ter qualified  to  discharge  them  ;  for,  though  in  zeal  and  integrity  I 
will  yield  to  no  man,  in  abilities  to  serve  you  I  know  my  inferiority 
to  many.  Since,  however,  this,  gentlemen,  is  your  pleasure,  although 
I  foresee  that  by  submitting  to  it  I  shall  be  ranked  by  our  enemies 
amongst  ambitious  and  designing  men,  by  whom,  they  say,  the  peo- 
ple have  been  deceived  and  misled,  yet  as  I  have  always  thought 
every  man's  best  services  due  to  his  country,  no  fear  of  slander  or 
of  difficulty  or  danger  shall  deter  me  from  yielding  mine.  In  so 
perilous  a  season  as  the  present  I  will  not  withhold  them  ;  but  in 
her  cause  every  moment  of  my  time  shall  be  employed.  Happy 
indeed  shall  I  be  if  those  services  answer  your  expectations,  or  my 
own  wishes.  On  the  candor  of  my  worthy  countrymen  I  rely  to 
put  the  most  favorable  construction,  as  they  hitherto  have  done, 
upon  my  actions.  I  assure  myself  of  receiving,  in  the  faithful  dis- 
charge of  my  duty,  the  support  and  assistance  of  every  good  man  in 
the  colony  ;  and  my  most  fervent  prayer  to  the  omnipotent  Ruler 

sufficient  consequence  to  be  made  an  object  of  peculiar  persecution ;  and  being 
sent  into  exile,  supported  all  the  trials  of  long  confinement  and  irritating  restric- 
tions with  unshaken  constancy.  After  his  exchange,  he  filled  the  speaker's  chair 
in  the  Legislature,  greatly  to  the  satisfaction  of  its  members,  and  finally  advanced 
to  the  Chancery  bench,  closed  a  life  of  usefulness  with  the  applause  and  sincere 
regrets  of  his  grateful  country." — Garden's  Anecdotes. 


%          JOHN  RUTLEDGE.  ;Q3 

of  the  universe  is,  that  under  his  gracious  Providence  the  liberties  of 
America  may  be  forever  preserved." 

The  president  immediately,  in  presence  of  both  houses,  took  the 
constitutional  oath  to  sustain  the  new  form  of  government,  adding 
ther.eto  the  solemn  asseveration  that  he  would  "  cause  law  and  justice 
in  mercy  to  be  executed,  and  to  the  utmost  of  my  power  maintain  and 
defend  the  laws  of  God,  the  protestant  religion,  and  the  liberties  of 
America." 

Alluding  to  this  in  his  speech  to  the  legislative  body,  two  weeks 
afterwards,  when  the  session  closed,  President  Rutledge  remarks  : 

"  On  my  part  a  most  solemn  oath  has  been  taken  for  the  faithful 
discharge  of  my  duty.  On  yours  a  solemn  assurance  has  been  given 
to  support  me  therein.  Thus  a  public  compact  between  us  stands 
recorded.  You  may  rest  assured  that  I  shall  keep  this  oath  ever 
in  my  mind  ;  the  Constitution  shall  be  the  invariable  rule  of  my  con- 
duct ;  my  ears  shall  be  always  open  to  the  complaints  of  the  injured  ; 
justice  in  mercy  shall  neither  be  denied  nor  delayed  ;  our  laws  and 
religion,  and  the  liberties  of  America,  shall  be  maintained  and  defend- 
ed to  the  utmost  of  my  power.  I  repose  the  most  perfect  confidence 
in  your  engagements." 

The  speech  from  which  the  foregoing  extract  is  taken  contained 
a  resumt  of  the  various  matters  in  dispute  between  the  colonies  and 
Great  Britain,  and  an  earnest  appeal  to  the  people,  through  their 
representatives.  It  was  printed  at  the  time,  by  order  of  the  As- 
sembly, in  handbills,  and  circulated  throughout  the  colony.  The 
criticism  passed  upon  it  by  the  writer  of  the  sketch  of  Rutledge, 
heretofore  alluded  to,  seems,  however,  quite  just  ;  that  the  speech, 
reduced  to  writing,  is  not  such  a  performance  as  would  command 
attention  now.  Nor  can  it  be  compared  for  a  moment  with  that 
forcible,  spirit-stirring  and  masterly  statement  with  which,  under 
the  form  of  a  charge  to  the  grand  jury,  Judge  Drayton,  a  few  days 
afterwards,  opened  the  provincial  courts  Under  the  authority  of  the 
Legislature,  after  they  had  been  closed  for  a  period  of  twelve  months.* 

*  Judge  William  Henry  Drayton  was  born  at  Drayton  Hall,  South  Carolina, 
in  September,  1742.  At  the  age  of  eleven  his  father  Bent  him  to  England,  under 
the  care  of  Charles  Pinckney,  for  the  purpose  of  prosecuting  his  studies  with  Mr. 
Pinckncy's  two  sons,  Charles  Cotesworth  and  Thomas  Pinckney.  In  the  autumu 

8 


H4.  LIVES  OF   THE  CHIEF^TUSTICES. 

In  the  foregoing  extract  from  President  Rutledge's  address,  he 
speaks  of  the  "solemn  assurance"  given  by  the  Legislature  to  sus- 
tain him  in  his  office.  This  assurance  was  contained  in  the  address  of 
both  houses,  presented  a  few  days  after  his  inauguration.  It  is  curious 
to  observe,  however,  that  in  this  address  the  "  accommodation  with 
Great  Britain"  is  still  prominently  put  forward. 

"  We  firmly  trust  you  will  make  the  Constitution  the  great  rule 
of  your  conduct ;" — it  says — "  and  in  the  most  solemn  manner,  we 
do  assure  your  Excellency,  that  in  the  discharge  of  your  duties 
under  that  Constitution,  which  looks  forward  to  an  accommodation 
with  Great  Britain  (an  event  which,  though  traduced  and  treated  as 
rebels,  we  still  earnestly  desire),  we  will  support  you  with  our  lives 
and  fortunes."  President  Rutledge,  it  appears,  did  not  at  this  pe- 
riod look  forward  so  anxiously  toward  this  "  accommodation,"  nor 
esteem  it  to  be  any  part  of  his  executive  duties  to  bring  it  about. 
His  language  upon  this  subject  is  cautious  and  guarded :  "  Be  per- 
suaded that  no  man  would  embrace  a  just  and  equitable  accommo- 
dation with  Great  Britain  more  gladly  than  myself;  but  until  so 
desirable  an  object  can  be  obtained,  the  defence  of  my  country,  and 

of  1761  young  Drayton  entered  Oxford,  where  he  continued  his  studies  nearly 
three  years.  Being  obliged  to  return  to  America  before  the  completion  of  his 
studies,  he  turned  his  attention,  it  is  said,  to  law  and  politics.  In  1771  he  was 
appointed  a  privy  councillor  for  the  province  of  South  Carolina,  and  on  the  decease 
of  Judge  Murray  was  commissioned,  in  January,  1774,  by  Lieutenant-Governor 
Bull,  an  assistant  judge  of  the  province  until  his  Majesty's  pleasure  should  be 
known  thereon.  Soon  after  the  Continental  Congress  met  at  Philadelphia,  and 
Judge  Drayton,  who  had  warmly  espoused  the  cause  of  the  colonists,  addressed  a 
very  able  pamphlet  to  the  deputies  in  Congress,  in  which  he  stated  the  grievances 
of  America,  and  drew  up  a  bill  of  rights.  This  brought  down  upon  him  an  accu- 
sation of  the  Chief-Justice,  Gordon,  and  one  of  the  Associate-Justices,  before  the 
Council,  and  Judge  Drayton  was  finally  superceded  in  March,  1775.  The  next 
year  he  was  appointed  Chief-Justice,  under  the  Revolutionary  government.  In 
this  capacity  he  re-opened  the  courts,  and  in  various  charges  to  the  Grand  Jury 
sustained  the  cause  of  the  colonies  with  great  boldness,  vigor  and  ability.  Judge 
Drayton  was  a  member  and  President  of  the  Provincial  Congress  of  South  Caro- 
lina. Subsequently,  in  1778,  he  was  elected  a  delegate  to  the  Continental  Con- 
gress. He  died  at  Philadelphia,  in  September,  1799,  while  still  a  member  of  Con- 
gress, and  Chief-Justice  of  South  Carolina,  in  the  thirty-seventh  year  of  his  age. 
"  He  was  a  statesman,"  says  Dr.  Ramsay,  "  of  great  decision  and  energy,  and  one 
of  the  ablest  political  writers  South  Carolina  has  produced." 


%          JOHN  RUTLEDGE.  ^5 

the  preservation  of  that  Constitution,  which  from  a  perfect  know- 
ledge of  the  rights,  and  a  laudable  regard  to  the  happiness  of  the 
people  yon  have  so  wisely  framed,  shall  engross  my  whole  attention." 
The  most  sagacious  intellects  in  the  State  had  no  doubt'  already 
begun  to  realize  the  momentous  truth  which  a  few  months  latter  was 
demonstrated  in  the  action  of  the  Continental  Congress,  that  ac- 
commodation with  Great  Britain  was  impossible.  Thus  Judge  Dray- 
ton  did  not  hesitate  to  express  it  in  his  celebrated  charge  to  the 
Grand  Jury,  to  which  I  have  alluded.  "The  Almighty  created 
America  to  be  independent  of  Britain,"  he  remarked  ;  "  let  us  be- 
ware of  the  impiety  of  being  backward  to  act  as  instruments  in  the 
Almighty  hand,  now  extended  to  accomplish  his  purpose." 

Installed  as  President  and  Commander-in-chief  of  the  colony,  Rut- 
ledge  was  soon  called  upon  to  exhibit  his  zeal  and  courage  in  the 
defence  of  his  people.  Up  to  this  time  South  Carolina  had  been 
exempt  from  the  presence  of  the  enemy,  and  with  the  exception  of 
a  few  royalists  scattered  here  and  there  over  the  colony,  very  little 
opposition  had  been  manifested  to  the  new  government.  The  royal 
Governor,  Lord  William  Campbell,  after  vain  efforts  to  excite  the 
royalists  to  opposition,  had  some  months  previous  to  this  time  aban- 
doned the  government,  and  taken  refuge  on  board  a  British  sloop-of- 
war  in  the  harbor  of  Charleston.  He  had  promised  his  adherents 
before  his  departure  that  "  his  Majesty  was  determined  to  send  ont 
troops "  to  reduce  the  rebels  to  submission  ;  but  for  several  months 
he  awaited  in  vain  the  arrival  of  the  expected  aid.  At  length  early 
in  June,  1776,  it  w^g  announced.  The  citizens  of  Charleston  were 
suddenly  aroused  from  their  repose  by  the  intelligence  that  a  British 
fleet  of  forty  or  fifty  vessels  was  at  anchor  about  six  leagues  to  the 
north  of  Sullivan's  Island,  carrying  a  formidable  and  overwhelming 
force  under  the  command  of  Sir  Henry  Clinton,  for  the  reduction 
of  the  rebellious  province.  Instantly  the  alarm  was  given,  and 
every  thing  was  in  commotion  in  the  colony.  The  President  and 
Commander-in-chief  was  upon  the  scene  of  action  ;  and  the  firmness, 
decision  and  energy  with  which  he  guided  public  affairs  at  this  criti- 
cal moment,  caused  the  superiority  of  his  genius  to  be  known  and 
acknowledged  by  all.  He  immediately  summoned  the  militia  of  the 
county  to  repair  to  Charleston  ;  he  ordered  the  regiments  already 


H6  LIVES  OF  THE  CHIEF-JUSTICES. 

formed  into  active  service ;  he  exerted  Ms  authority  to  the  utmost 
to  arm,  equip  and  supply  the  troops.  His  efforts  were  nobly  se- 
conded by  the  officers  under  his  command.  In  the  course  of  a  few 
days  five  or  six  thousand  men  were  assembled  for  the  defence  of 
Charleston.  Congress,  unable  at  that  particular  juncture  to  furnish 
any  thing  more  valuable,  sent  the  southern  people  a  very  experienced, 
and,  as  it  was  then  supposed,  a  very  able  and  skilful  general,  the 
eccentric  Charles  Lee,  whose  subsequent  exploits  by  no  means 
equalled  his  great  reputation.  It  has  been  well  remarked  that  it 
was  fortunate  for  South  Carolina  at  that  juncture  that  she  had 
placed  at  the  head  of  her  affairs  a  man  so  resolute  and  prompt,  and 
a  statesman  so  sagacious  as  John  Rutledge.  Without  him,  and  with 
no  councils  to  guide  but  those  of  General  Lee,  Charleston  would 
most  probably  have  fallen,  and  the  royal  Governor,  Lord  Campbell, 
have  been  reinstated  in  his  authority,  under  the  guns  of  the  British 
squadron  and  the  bayonets  of  Sir  Henry  Clinton's  army. 

One  of  the  main  points  of  defence  to  the  city  was  upon  Sullivan's 
Island,  six  miles  nearer  the  sea  than  the  neck  of  land  on  which 
Charleston  stands,  and  so  near  the  channel  as  to  be  a  convenient 
post  for  annoying  ships  approaching  the  town.  A  rude  fort  had 
been  erected  on  this  island,  constructed  of  timber  of  the  Palmetto 
tree.  This  fort,  subsequently  known  by  the  name  of  Fort  Moultrie, 
from  its  heroic  defender,  with  its  little  garrison  of  three  hundred 
and  forty-four  men,  was  condemned  by  General  Lee  on  his  arrival, 
who  declared  it  to  be  a  "  slaughter-pen,"  and  advised  President 
Rutledge  to  order  its  immediate  abandonment.  This  Rutledge 
promptly  declined,  and  heroically  replied  that  "  while  a  soldier  re- 
mained alive  to  defend  it,  he  would  never  give  his  sanction  to  such 
an  order."  "  They  will  knock  your  fort  about  your  heads  in  half  an 
hour,"  remarked  Gen.  Lee  to  Moultrie,  and  actually  proposed  to 
diminish  the  number  of  troops  on  the  island.*  But  Rutledge,  taking 
counsel  from  the  inspiration  of  his  own  courage,  rather  than  from 
the  skill  of  his  experienced  adviser,  persisted  in  his  resolution,  and 
directed  Moultrie  to  defend  the  fort  to  the  last  extremity. 

*  In  a  despatch  to  Moultrie,  Gen.  Lee,  alluding  to  the  force  of  about  one  thou- 
sand regulars  and  militia  under  Cols.  Clark,  Thompson  and  Horry  stationed  on 
the  east  end  of  Governor's  Island,  says  :  "I  would  order  the  whole  body  off  the 
island,  but  apprehend  it  would  make  your  garrison  uneasy." 


•»         JOHN  RUTLEDGR  HY 

The  attack  on  Fort  Moultrie  was  made  on  the  28th  of  June. 
The  British  fleet  consisted  of  ten  vessels,  two  of  which  were  fifty  gnn 
ships,  and  four  frigates  of  twenty-eight  guns  each.  The  heroic  and 
successful  defence  of  the  fort  by  Col.  Moultrie  constitutes  a  proud 
chapter  in  the  revolutionary  annals  of  South  Carolina.  For  a  moment, 
however,  in  the  midst  of  that  terrible  cannonade,  as  the  flag  of  the 
fortress  fell  to  the  beach,  it  seemed  that  Lee's  prediction  would  be 
verified ;  that  the  fort  would  be  battered  down,  and  the  garrison 
annihilated.  But  it  was  for  a  moment  only.  The  same  anxious 
eye  that  saw  through  the  distance  and  the  smoke  of  the  battle,  the 
flag-staff  fall  from  the  merlon,  the  next  moment  gazed  upon  a  sight 
that  caused  every  heart  to  thrill  with  exultation.  A  sergeant  of 
grenadiers  leaped  from  one  of  the  embrasures  of  the  fort  upon  the 
beacb;  into  the  open  fire  of  the  British  guns,  seized  the  fallen  ban- 
ner, and  bearing  it  back  amid  a  shower  of  balls,  planted  it  once 
more  upon  the  American  works  in  triumph.  This  gallant  soldier 
was  Sergeant  Jasper.  Rutledge  appropriately  acknowledged  hia 
heroism  after  the  battle,  by  presenting  him  with  his  own  sword,  in 
presence  of  the  garrison,  and  tendering  him  a  commission  in  the 
regiment.* 

General  Lee,  it  seems,  could  not  be  convinced,  even  after  the  battle 
had  been  raging  two  hours,  that  it  was  possible  to  beat  off  the 
British  frigates.  The  following  is  his  dispatch  to  Moultrie  during  the 
battle : 

"  DEAR  COLONEL — If  you  should  unfortunately  expend  your  ammu- 
nition without  beating  off  the  enemy,  or  driving  them  on  ground,  spike 
your  guns,  and  retreat  with  all  the  order  possible." 

But  the  gallant  Moultrie  had  no  thought  of  retreat.  The  inspi- 
ration of  courage  was  with  him  the  inspiration  of  hope,  and  the 
assurance  of  success.  Not  even  the  positive  command  of  Lee  would 

*  Jasper  proudly  accepted  the  sword,  but  declined  the  commission.  "  Were  I 
made  an  officer,"  he  modestly  said,  "  my  comrades  would  be  constantly  blushing 
for  my  ignorance,  and  I  should  be  unhappy,  feeling  my  own  inferiority.  I  have 
no  ambition  for  higher  rank  than  that  of  a  sergeant."  Mr.  Garden  says,  in  his 
Anecdotes,  that  the  subsequent  conduct  of  Jasper  was  exemplary — but  in  the 
details  which  he  had  seen  carried  too  much  the  air  of  romance  to  be  dwelt  upon. 
He  fell,  mortally  wounded,  while  vainly  endeavoring  to  plant  the  colors  of  las 
regiment  on  the  walls  of  Savannah. 


H3  LIVES  OF  THE  CHIEF-JUSTICES. 

have  drawn  him  from  his  post  while  a  single  cannon  remained  mounted, 
or  one  palmetto  log  lay  upon  another.  He  had  in  his  pocket  the 
directions  of  his  own  commauder-in-chief — received  on  the  morning  of 
the  battle — and  they  coincided  too  closely  with  his  own  determined 
bravery  to  be  disregarded.  These  directions  were  given  in  the  follow- 
ing laconic  and  characteristic  sentences  : 

"  General  Lee  wishes  you  to  evacuate  the  fort.  You  will  not  do  so 
without  an  order  from  me.  /  would  sooner  cut  off  my  hand  than  write 
one"  J.  RUTLEDGE." 

During  the  whole  of  the  engagement,  President  Rutledge  was  in 
active  duty  among  the  citizens  aud  soldiers,  who  had  crowded  to 
their  various  posts  of  defence  in  the  city,  with  arms  in  their  hands, 
determined  to  fight  every  inch  of  ground  from  the  waters'  edge,  if 
the  enemy  should  finally  overpower  the  fort  and  garrison,  and  effect 
a  landing.  While  Lee  was  talking  of  retreat,  Rutledge  was  devis 
ing  means  to  supply  the  garrison  with  ammunition.  At  the  height  of 
the  engagement  he  sent  in  a  quantity  of  powder,  with  the  following 
despatch  to  Moultrie  : 

"I  send  you  five  hundred  pounds  of  powder.  You  know  our  collec- 
tion is  not  great.  Honor  and  victory,  my  good  sir,  to  you  and  our 
worthy  countrymen  with  you.  Do  not  make  too  free  with  your  can- 
non. Cool  and  do  mischief." 

The  advice  was  followed  to  the  letter.  The  officers  from  the  fort 
managed  the  guns  with  such  skill,  that  nearly  every  shot  took  effect. 
The  Thunder  Bomb,  after  discharging  sixty  shells,  was  disabled. 
The  Acteon  was  so  crippled  that  after  the  action  she  was  abandoned 
and  blew  up.  The  Bristol,  fifty  gun  ship,  had  every  man  on  her 
quarter-deck  killed  or  wounded,  and  with  the  Experiment,  the  other 
fifty  gun  ship,  sustained  a  loss  of  sixty-three  killed  and  one  hundred 
and  forty-seven  wounded.  Finally,  after  a  cannonade  of  eight  or  ten 
hours  without  intermission,  the  squadron  slipped  its  cables  and  retired, 
bearing  away  Lord  William  Campbell  mortally  wounded.  Thus  ended 
the  threatened  invasion  of  South  Carolina. 

Congress  returned  a  vote  of  thanks  to  General  Lee,  and  Colonels 
Moultrie  and  Thomson,  for  their  good  conduct  on  this  memorable 
day.  The  result  of  that  day  was  of  the  utmost  importance  to  Soutli 


JOHN  RUTLEDGE.  H9 

Carolina.  It  removed  the  foot  of  the  invader  from  her  soil,  and 
gave  her  peac%  and  tranquillity  for  a  period  of  nearly  three  years. 

On  the  fourth  of  July,  1776,  six  days  after  the  battle,  President 
Rutledge  officially  visited  the  garrison  on  Sullivan's  Island,  for  the 
purpose  of  returning  thanks  to  them  for  their  gallant  conduct  in 
defence  of  the  fortress.  It  was  upon  this  occasion  that,  looking 
around  him  with  an  eye  beaming  with  exultation,  and  kindling  with 
pride,  he  broke  forth  into  one  of  those  fiery  and  impassioned  harangues 
to  which  the  inspirations  of  genius,  warmed  into  life  by  the  glow  of 
passionate  feeling,  can  alone  give  utterance.  Pointing  to  the  azure 
banner  which  now  floated  in  triumph  over  one  of  the  bastions  of  the 
fortress,  he  singled  out  from  the  ranks  the  gallant  soldier  who  had 
planted  it  there  amid  the  fire  of  the  British  cannon,  and  after  pro- 
nouncing a  beautiful  encomium  upon  his  heroism,  gracefully  presented 
him  the  sword  which  he  ungirded  from  his  own  side. 

A  eotemporary  of  Rutledge  *  had  the  good  fortune  to  meet  him 
many  years  afterwards,  on  this  very  spot,  and  he  has  recorded  the 
words  he  then  uttered — his  eye  kindling  with  delight,  and  his  voice 
trembling  with  emotion,  as  the  recollections  of  other  days  clustered 
thick  around  him.  "  I  remember,"  he  exclaimed,  "  the  engagement, 
as  if  it  were  fought  but  yesterday  !  I  remember  my  perfect  confi- 
dence in  Moultrie  !  I  have  all  the  scene  before  me,  too,  when  I 
visited  the  post  to  express  the  thanks  of  the  country  to  the  heroes 
who  defended  it.  There  stood  Moultrie — there  Motte — there  Marion, 
Horry,  and  the  intrepid  band  whom  they  commanded.  I  ad- 
dressed them  with  an  energy  of  feeling  that  I  had  never  before 
experienced  ;  and  if  ever  I  had  pretensions  to  eloquence,  it  was  at 
that  moment."  The  same  gentleman  who  has  given  this  account, 
adds,  that  Rutledge,  becoming  animated  as  he  spoke,  as  though  his 
old  companions  in  arms  and  in  council  were  immediately  before  him, 
"delivered  himself  in  an  eloquent  and  impressive  strain  of  eulogy,  so 
perfectly  fascinating,  that  had  his  first  address  but  borne  a  shadow 
of  resemblance  to  it,  there  could  not  have  been  a  man  among  his 
auditors  who  would  not  have  been  proud  to  die  for  liberty  and  his 
country." 

On  the  very  day  that  Rutledge  visited  Fort  Moultrie  to  express 
*  Mr.  Alexander  Garden.  See  his  Anecdotes  of  the  Revolution. 


120  LIVES  OF  THE  CHIEF^TUSTICES. 

the  thanks  of  a  grateful  country  to  its  heroic  defenders,  the  Ameri- 
can Congress  at  Philadelphia,  declared  the  colonies  FREE  AND  INDE- 
PENDENT STATES.  The  news  of  this  great  event  arrived  in  Charleston 
at  a  most  auspicious  period.  It  found  the  minds  of  the  people  fully 
prepared  for  it.  There  was  no  longer  any  talk  of  an  "  accommoda- 
tion" with  Great  Britain.  The  threatened  invasion  of  South  Caro- 
lina, and  the  glorious  defence  of  Fort  Moultrie,  had  rendered  ac- 
commodation impossible.  The  declaration  was  received  with  every 
demonstration  of  joy,  amid  the  firing  of  cannon  and  the  ringing  of 
bells,  and  was  publicly  read  to  the  troops  under  arms.  In  trans- 
mitting it  to  the  Legislature,  Governor  Rutledge  said,  "It  is  an 
event  which  necessity  had  rendered  not  only  justifiable,  but  abso- 
solutely  unavoidable.  It  is  a  decree  now  worthy  of  America.  We 
thankfully  receive  the  notification  of,  and  rejoice  at  it ;  and  we  are 
determined  at  every  hazard  to  endeavor  to  maintain  it,  that  so,  after 
we  have  departed,  our  children  and  their  latest  posterity  may  have 
cause  to  bless  our  memory."  In  response  to  the  President's  address, 
the  General  Assembly  expressed  "the  joy  and  satisfaction"  with 
which  they  had  received  the  intelligence,,  and  their  hearty  approval  of 
the  Declaration  of  Independence. 

The  General  Assembly  was  dissolved  on  the  21st  of  October  of 
this  year,  and  a  new  election  held,  agreeably  to  the  Constitution. 
The  result  of  the  election  was  the  return  of  nearly  all  the  old  mem- 
bers. The  Assembly  met  on  the  5th  December,  and  soon  after  re- 
elected  Rutledge  President  of  the  State,  and  Col.  Laurens  Vice- 
President. 

During  the  period  of  a  year  and  upward,  in  which  he  continued  to 
discharge  the  duties  of  this  office,  but  little  of  interest  occurred  in 
South  Carolina.  A  formidable  Indian  invasion  was  briskly  met  and 
successfully  repelled,  and  the  savages,  attacked  on  all  sides,  sued 
for  peace.  A  treaty  between  them  and  the  State  was  soon  after 
signed,  by  which  the  Indians  ceded  a  considerable  part  of  their  ter- 
ritory, and  the  frontier  settlement  thereafter  continued  to  remain 
in  undisturbed  tranquillity.  Throughout  the  entire  State  business 
revived,  and  agriculture  flourished.  Commerce  increased.  Rutr 
ledge's  administration  was  everywhere  successful  and  fortunate.  So 
much  tranquillity  reigned  in  every  part  of  South  Carolina,  says  Dr. 


JOHN  RUTLEDGE.  121 

Ramsay,  that  after  the  departure  of  the  British  fleet  and  army,  in 
July,  and  the  termination  of  the  Cherokee  expedition,  in  October, 
1176,  the  bulk  of  the  people  was  scarcely  sensible  of  any  revolution, 
or  that  the  country  was  at  war. 

But  this  tranquillity 'was  about  to  be  broken.  A  more  formidable 
invasion  was  preparing  against  the  southern  states  than  the  futile 
attempt  in  1716,  and  the  people  of  South  Carolina  were  about  to 
experience  in  its  most  fearful  and  appalling  shape,  the  horror  of  civil 
war.  Before  entering  upon  this  narrative,  however,  it  is  proper  to 
glance  at  the  change  which,  in  the  mean  time,  occurred  in  the  form  of 
the  new  State  government,  inasmuch  as  the  subject  is  intimately  con- 
nected with  Mr.  Rutledge's  history. 

The  temporary  Constitution,  as  has  been  observed,  was  ratified  in 
March,  1716.  It  was  designed  to  last  only  until  an  "accommoda- 
tion of  the  differences  between  Great  Britain  and  America  should 
take  place."  The  Declaration  of  Independence  rendered  it  neces- 
sary to  adopt  a  new  and  permanent  Constitution  and  form  of  gov- 
ernment. This  was  the  work  of  the  deliberative  branches  of  the 
Legislature  during  part  of  the  year  1777,  and  having  been  com- 
pleted, it  was  finally  passed  into  a  law  in  March,  1778,  and  pre- 
sented to  the  President  for  his  ratification.  Rutledge  disapproved 
the  proposed  plan  of  government,  and  refused  to  give  it  his  assent. 
Unwilling,  however,  to  obstruct  the  wishes  of  the  people  as  ex- 
pressed through  their  delegates,  he  tendered  his  resignation  as  Pre- 
sident, leaving  the  Legislature  to  choose  another  executive  magis- 
trate to  carry  out  their  demands  by  the  approval  of  the  proposed 
Constitution. 

The  reasons  of  his  refusal  to  approve  this  measure  were  expressed 
in  a  speech  of  some  length,  delivered  to  both  houses  on  the  occa- 
sion of  his  resignation.  These  reasons  do  not  appear  to  be  entirely 
satisfactory,  and  would  probably  fail  to  convince  any  one  at  this  day 
of  the  correctness  of  his  position.  The  new  form  of  government  dif- 
fered from  the  old  in  some  important  particulars.  Not  to  mention 
the  change  in  the  appellation  of  the  commonwealth  from  colony  to 
State,  and  of  the  chief-magistrate  from  President  to  Governor,  there 
were  some  essential  and  fundamental  alterations  proposed.  Thus 
the  legislative  body  was  reduced  from  three  to  two  branchos.  The 


122  LIVES  OF  THE  CHIEF-JUSTICES. 

second  branch,  instead  of  being  elected  by  the  Assembly  from  their 
own  body,  were  to  be  elected  by  the  people  ;  and  a  rotation  was 
established  in  the  office  of  Governor  and  the  other  principal  offices 
of  the  State.  Rutledge  refused  his  assent  to  the  bill  on  the  ground 
first  of  a  want  of  power  to  pass  it  ;*  and  secondly,  admitting  the 
power,  that  the  system  itself  \^as  objectionable.  He  thought  the 
people  "  preferred  the  present  mode  of  electing  a  legislative  council 
to  that  which  is  offered  for  electing  a  senate,  probably  because  it 
appeared  more  likely  that  persons  of  the  greatest  integrity,  learning 
and  abilities,  should  be  chosen  by  and  from  amongst  these  represen- 
tatives when  assembled,  than  by  electors  in  their  several  districts." 
Remarking  upon  the  policy  of  the  change  proposed,  he  says  :  "  Cer- 
tain it  is  that  systems  which  in  theory  have  been  much  admired,  on 
trial  have  not  succeeded  ;  and  that  projects  and  experiments  relative 
to  government  are  of  all  schemes  the  most  dangerous  and  fatal. 
The  people  having  adopted  such  a  Constitution  as  appeared  to  them 
most  perfect,  when  it  is  not  even  surmised  that  any  grievance  or 
inconvenience  has  arisen  from  it,  and  when  they  are  satisfied  with  and 
happy  under  it  (which  I  firmly  believe  they  are),  if  we  had  authority, 
I  should  conceive  it  neither  politic,  expedient,  nor  justifiable  to 
change  this  form  for  another,  especially  as  I  think  that  the  one  pro- 
posed will  not  be  better  than,  or  so  good  as  what  we  now  enjoy  ;  and 
whether  it  would  or  not,  is  a  speculative  point  which  tune  only  can 
determine." 

Rutledge  thereupon  resigned  his  office  of  President,  and  recom- 
mended the  election  of  some  person  who  would  be  able  to  give  the 
necessary  assent  and  ratification  to  the  new  Constitution.  The  Leg- 
islature accepted  his  resignation,  and  immediately  elected  Hon. 
Rawlins  Lowudes,  President,  who  soon  after  gave  his  assent  to  the 
Constitution,  which  thus  became  the  fundamental  law  of  the  State. 

Mr.  Rutledge  now  retired  for  a  brief  period  from  the  public  ser- 
vice, although  we  are  assured  on  good  authority  that  his  resignation 
did  not  in  the  least  "  diminish  his  popularity."  This  is  evident  in 

*  There  is  some  force  in  this  objection.  The  Legislature  was  certainly  not 
elected  with  a  view  of  framing  a  new  Constitution.  But  the  difference  between 
a  mere  legislative  act,  and  the  passage  of  a  fundamental  law  or  Constitutional 
provision,  was  not  so  well  understood  at  that  day  as  it  is  now. 


JOHN  RUTLEDGE.  123 

« 

the  fact  that  soon  after,  in  a  time  of  real  danger,  when  a  formidable 
invasion  threatened  the  State,  and  when  gloom  and  darkness  over- 
spread the  whole  country,  he  was  recalled,  and  again  replaced  at  the 
helm. 

In  this  time  of  general  alarm,  says  the  historian  of  South  Caro- 
lina, John  Rutledge,  by  the  almost  unanimous  voice  of  his  country- 
men, was  called  to  the  chair  of  government.  Although  he  had 
opposed  the  adoption  of  the  new  system,  he  did  not  hesitate  for  a 
moment  to  accept  the  trust,  and  as  Governor  of  the  State  took  the 
oath  of  fidelity  to  the  Constitution.  With  characteristic  prompt- 
ness and  energy  he  immediately  set  about  devising  means  for  the 
defence  of  the  country.  The  British  General,  Prevost,  with  two 
thousand  men,  had  crossed  over  into  Carolina,  while  General  Lin- 
coln, with  the  main  body  of  the  American  army,  was  commencing 
offensive  operations  in  Georgia.  A  small  force  under  General 
Moultrie  lay  at  Black  Swamp,  between  Prevost  and  the  capital  of 
South  Carolina.  Rutledge,  in  the  capacity  of  Governor  and  com- 
mander-in-chief,  summoned  the  State  militia  to  his  camp  at  Orange- 
burgh,  near  the  centre  of  the  State,  and  put  himself  at  their  head, 
prepared  to  march  wherever  the  public  exigencies  required.  From 
this  camp  he  dispatched  Col.  Simmons,  with  a  thousand  men,  to  re- 
inforce Moultrie.  Before  the  juncture  was  effected,  Moultrie  retreat- 
ed to  Tulifmny  Bridge,  keeping  between  the  advancing  Britisli  army 
and  Charleston.  Prevost  followed,  apparently  with  the  design  of 
attacking  Charleston,  and  Rutledge  thereupon  set  his  whole  force  iu 
motion,  with  the  view  of  joining  Moultrie  at  Tulifinny,  and  disputing 
with  the  British  the  possession  of  the  capital.  On  the  second  day  of 
his  march  he  received  advices  that  Moultrie  had  abandoned  his  post 
and  was  slowly  retreating  before  a  superior  British  force  toward 
Charleston.  This  intelligence  changed  the  plan  of  Gov.  Rutledge, 
who  immediately  marched  with  all  the  forces  under  his  command  to 
the  defence  of  the  capital. 

Moultrie  and  Rutledge  reached  Charleston  about  the  same  time, 
the  9th  and  10th  of  May.  Their  arrival  gave  hopes  of  a  successful 
defence,  particularly  as  by  the  efforts  of  Lieutenant-Governor  Bee 
and  the  Council,  the  town  had  been  placed  in  a  respectable  state 
of  defence  on  the  land  side.  This  confidence  was  increased  a  day  or 


124  LIVES  OF  THE  CHIEIWSTICES. 

two  after  by  the  arrival  of  the  gallant  Pulaski,  with  his  legionary 
corps,  almost  at  the  same  moment  that  the  advance  guard  of  the 
British  appeared  on  Charleston  neck. 

The  American  forces,  however,  were  far  inferior  to  the  British, 
and  it  seems  doubtful  whether  they  would  have  been  able  to  sustain 
an  assault  upon  their  lines.  It  was  supposed  that  General  Lincoln, 
with  the  main  army,  was  in  pursuit  of  Prevost,  but  his  position  was 
entirely  unknown.  In  this  emergency  it  was  of  the  utmost  import- 
ance to  the  Americans  to  gain  time,  and  accordingly  a  conference 
was  opened  with  General  Prevost  on  the  subject  of  a  capitulation. 
The  British  General  offered  "  peace  and  protection "  to  the  inhabit- 
ants, and,  to  such  as  declined  to  submit,  that  they  should  be  re- 
ceived as  prisoners  of  war.  This  was  refused  by  the  garrison  as  dis- 
honorable, and  an  interview  between  the  officers  of  the  army  pro- 
posed to  confer  on  terms.  It  is  somewhat  surprising  to  find  at  this 
conference,  the  officers  of  the  garrison  proposing  "  a  neutrality  dur-1 
ing  the  war  between  Great  Britain  and  America  ;  and  that  the 
question  whether  the  State  shall  belong  to  Great  Britain,  or  remain 
one  of  the  United  States,  be  determined  by  the  treaty  of  peace  be- 
tween these  powers."  It  seems  a  confession  on  the  part  of  South 
Carolina  of  utter  inability  to  contribute  to  the  general  defence  of 
the  States.  Still  more  surprising  is  it  to  find  this  proposition  re- 
jected by  General  Prevost,  who  claimed  that  "  as  the  garrison  was 
in  arms,  they  must  surrender  prisoners  of  war."  ThLs  was  refused, 
and  the  garrison  and  citizens  of  Charleston  determining  to  defend 
their  works  to  the  last  extremity,  prepared  to  sustain  an  immediate 
assault.  All  night  the  garrison  stood  to  their  guns,  and  the  people 
remained  in  a  state  of  suspense,  expecting  each  moment  an  attack 
by  the  enemy.  The  morning  relieved  then*  apprehensions.  The  cry 
of  "  the  enemy  is  gone,"  resounded  along  the  lines,  and  Prevost  was 
seen  in  full  retreat.  Intelligence  had  probably  been  received  by 
him  of  the  arrival  of  Lincoln,  and  the  threatened  assault  was  aban- 
doned. Count  Pulaski  pursued  the  retreating  British  with  his  caval- 
ry, but  they  crossed  the  Ashley  river  before  he  came  up  with  them. 
The  capital  was  again  for  a  brief  period  rescued  from  the  hands  of  the 
enemy. 

The  unsuccessful  attempt  of  Prevost  was  followed  the  next  year 


JOHN  RUTLEDGE.  125 

by  a  more  systematic  and  formidable  attack.  The  capture  of 
Charleston  was  now  threatened  in  earnest.  Sir  Henry  Clinton, 
sailing  from  New  York  with  a  powerful  and  well-appointed  army 
of  twelve  thousand  men,  landed  on  the  llth  of  February,  1780, 
within  thirty  miles  of  Charleston.  Gov.  Rutledge,  with  an  insuffi- 
cient garrison,  under  the  command  of  Lincoln,  was  at  his  post  for 
the  defence  of  the  town.  The  militia  came  in  slowly  ;  supplies  were 
far  from  abundant ;  the  aid  ordered  by  Congress  for  the  defence  of 
Charleston  had  not  arrived  ;  every  thing  seemed  favorable  for  the 
enemy  ;  and  had  Sir.  Henry  Clinton  on  his  arrival  marched  at  once 
upon  the  town,  it  would  doubtless  have  fallen  at  a  blow. 

In  this  emergency  the  assembly,  then  in  session,  acted  with  much 
spirit.  They  resolved  unanimously  that  Charleston  should  be  de- 
fended to  the  last  extremity.  Soon  after  it  was  determined  to 
clothe  the  Governor  and  his  Council  with  an  absolute  dictatorship, 
and  accordingly  they  delegated  "  till  ten  days  after  their  next  ses- 
sion, to  the  Governor,  John  Rutledge,  Esq.,  and  such  of  his  Council 
as  he  could  conveniently  consult,  a  power  to  do  every  thing  neces- 
sary for  the  public  good,  except  the  taking  away  the  life  of  a  citizen 
without  a  legal  trial ;"  after  which  the  Assembly  adjourned.  Armed 
with  this  formidable  power,  the  Governor  immediately  placed  him- 
self in  co-operation  with  the  military  authority  in  command  of  the 
town.  He  ordered  the  militia  to  rendezvous,  but  the  call  was  dis- 
regarded. Thereupon  he  issued  .a  proclamation  requiring  "  such  of 
the  militia  as  were  regularly  drafted,  and  all  the  inhabitants  and 
owners  of  property  in  the  town,  to  repair  to  the  American  standard, 
and  join  the  garrison  immediately,  on  pain  of  confiscation."  But  the 
proclamation  produced  as  little  effect  as  the  former  order.  The 
approach  of  the  British  army  seemed  to  have  chilled  the  hopes  and 
paralyzed  the  minds  of  the  inhabitants. 

Rutledge  and  Lincoln,  however,  did  not  yet  despair.  What  men 
could  do  was  done  by  them.  The  lines  were  increased  and  strength- 
ened— a  citadel  erected,  and  works  thrown  up  on  all  sides  of  the 
town.  But  it  seemed  to  be  manifest  even  before  the  batteries  of  the 
British  were  opened,  that  resistance  was  hopeless.  Notwithstanding 
every  exertion  to  reinforce  the  garrison,  only  four  thousand  troops 
could  be  collected  within  the  lines.  They  were  too  few  to  defend 


126  LIVES  OF  THE  CHIEF-JUSTICES. 

the  extensive  works  around  the  city  ;  the  works  themselves  were 
weak  and  badly  served  with  artillery,  aud  the  fall  of  Charleston 
seemed  certain.  Then  it  was  that  on  the  pressing  solicitation  of 
Lincoln,  it  was  decided  that  in  order  to  preserve  the.  civil  and  ex- 
ecutive authority  of  the  State,  in  the  event  of  the  fall  of  the  capital, 
Governor  Rutledge  and  three  of  his  Council  should  retire,  and 
Lieutenant-Governor  Gadsden  with  the  other  five  of  that  body  should 
remain  within  the  lines.  It  was  thought  that  the  presence  of  the 
Governor,  clothed  as  he  was  with  dictatorial  power,  was  necessary 
in  the  country,  not  only  to  raise  levies  for  the  relief  of  the  capital, 
but  to  organize  a  new  resistance  in  the  event  of  its  fall.  Accord- 
ingly on  the  12th  April,  Gov.  Rutledge,  with  Messrs.  Charles 
Pinckney,  Daniel  Huger,  and  John  L.  Gervaise,  left  Charleston. 
On  the  same  day  the  British  batteries  were  opened  ;  and  on  the 
12th  May,  General  Lincoln,  after  a  stout  resistance,  surrendered. 

The  wisdom  of  the  Assembly  in  delegating  plenary  power  to  Rut- 
ledge  and  such  of  his  council  as  he  "  could  conveniently  consult," 
was  now  apparent.  It  was  the  sole  power,  executive,  legislative,  or 
judicial,  left  remaining  of  the  new  government ;  and  although  for 
some  time  after  the  fall  of  Charleston  it  was  scarcely  anything  more 
than  the  shadow  of  a  name,  yet  it  was  still  a  rallying  point  for  the 
patriots,  or  at  least  it  might  become  such  at  some  future  and  more 
auspicious  day.  Rutledge  endeavored  to  collect  the  militia  and 
march  to  the  relief  of  Charleston.  Failing  in  this,  he  attempted 
to  make  a  stand  on  the  north  side  of  the  Santee,  and  rally  forces  in 
sufficient  numbers  to  renew  the  struggle  for  the  dominion  of  the 
State.  Several  parties  of  Americans,  including  three  hundred  Con- 
tinentals of  the  Virginia  line,  under  Colonel  Buford,  had  advanced 
into  the  northern  part  of  the  State,  but  after  the  fall  of  the  capital, 
and  the  rapid  approach  of  the  British  northward,  they  retreated 
toward  North  Carolina.  Tarleton's  brigade  having  overtaken 
Buford's  command,  barbarously  massacred  the  greater  portion  of  it, 
after  a  feeble  resistance,  and  even  after  the  men  had  sued  for  quarter, 
and  surrendered.  On  every  side  the  royalists  were  triumphant — not 
a  single  company  of  Americans  was  in  the  field — and  the  war  in 
South  Carolina  was  apparently  at  an  end. 

But  even  in  this  gloomy  crisis  the  restless  and  indomitable  spirit 


JOHN  RUTLEDGE.  127 

• 

of  John  Rutledge,  unbroken  by  defeat,  and  still  hopeful  of  success, 
was  meditating  new  plans  for  the  defence  of  the  country.  Driven, 
with  scarcely  an  escort,  by  Tarleton's  dragoons,  beyond  the  frontiers 
of  his  native  State,  he  hastened  with  all  despatch  to  solicit  succor 
from  the  States  of  North  Carolina,  Virginia,  and  from  Congress.  A 
detachment  of  fourteen  hundred  Continentals  was  already  on  its 
march  towards  the  South,  under  the  command  of  the  brave  and  chiv- 
alrous De  Kalb.  The  appeals  of  Gov.  Rutledge  to  North  Carolina 
and  Virginia,  seem  to  have  been  successful,  for  each  of  those  States 
detailed  a  body  of  militia  to  co-operate  with  the  Continental  army  ; 
and  on  the  15th  of  August,  Gen.  Gates,  who  had  been  assigned  to 
the  Southern  department,  found  himself  near  Camdeu  at  the  head  of 
an  army  of  three  thousand  five  hundred  effective  men.  The  forces 
under  Lord  Cornwallis,  who  had  been  left  in  command  of  the 
British  after  Sir  Henry  Clinton's  departure,  were  far  inferior  in 
point  of  numbers,  but  admirably  disciplined,  and  flushed  with 
victory.  Gates,  in  the  full  prestige  of  his  late  triumph  at  Saratoga, 
rashly  confident  in  himself  and  in  his  own  fortune,  risked  a  battle 
and  lost  it.  His  defeat  was  total.  It  was  more  than  a  defeat — it 
was  a  rout — almost  an  annihilation.  Such  a  terrible  overthrow  had 
not  been  sustained  by  any  American  General  during  the  war.* 
Gates  fled  from  Camden  to  Hillsborough  in  North  Carolina,  where 
he  attempted  to  rally  the  wreck  of  this  unfortunate  army.  Here,  it 
seems,  he  was  met  by  Governor  Rutledge.  The  appearance  of  the 
American  army — the  army  which  Rutledge  had  so  fondly  hoped  was 
destined  to  effect  the  liberation  of  South  Carolina,  was  pitiable  in 
the  extreme.  Nothing  but  the  mere  wreck,  the  tristes  reliquiz,  of 
that  army,  remained  ;  and  in  its  destruction  Rutledge  witnessed  the 
ruin  of  those  hopes  he  had  so  warmly  and  so  ardently  cherished. 
But  the  eager  reproach,  if  he  had  any  to  make,  must  have  died 
upon  his  lips  as  he  encountered  the  commanding  general.  The  pride 
*  The  main  error  of  Gen.  Gates  seems  to  have  consisted  in  his  rashness  in 
risking  a  battle  without  taking  the  necessary  precautions  in  case  of  disaster.  Hie 
arrangements  on  the  field  appear  to  have  been  skillfully  made,  and  it  was  cer- 
tainly no  fault  of  his  that  he  could  not  make  the  Virginia  militia  stand  fire,  or  the 
North  Carolina  militia  face  the  British  bayonet.  Had  his  whole  force  consisted  of 
Delaware  and  Maryland  Continentals,  the  issue  of  that  unfortunate  day  would 
have  been  far  different. 


12g  LIVES  OF  THE  CHIEF-JUSTICES. 

of  Gates  had  been  crushed — the  iron  had  entered  his  soul — he  was  a 
humbled  and  a  broken  man.  He  had  seen  in  a  day  the  laurels  of 
victory  wither  upon  his  brow  ;  he  had  rashly  reached  out  his  hand  to 
pluck  the  tempting  fruit,  and  it  had  turned  to  ashes  upon  his  lips. 
Gates,  in  his  little  camp  at  Hillsborough,  was  an  object  of  sympathy, 
not  of  reproach.  The  conqueror  of  Burgoyne,  who  had  returned 
laden  with  the  spoils  of  Saratoga,  had  become  the  fugitive  of  Camden. 
It  was  the  spectacle  of  the  vanquished  Hector  : 

Hei  mihi  !  qualis  erat !  quantum  mutatus  ab  illo 
Hectare,  qui  redit  exuvias  indutus  Jlchillis. 

Immediately  after  the  defeat  of  Gates  at  Camden,  news  of  a 
fresh  disaster  reached  the  ears  of  Rutledge.  This  was  the  surprise 
and  dispersion  of  the  corps  of  General  Sumpter,  who  for  some  time 
past  had  carried  on  a  successful  partisan  warfare  against  the  British 
and  tories  in  South  Carolina.  That  gallant  officer,  on  hearing  of 
Gates'  defeat,  began  a  rapid  retreat  up  the  Wateree  river,  with 
three  hundred  prisoner^  and  a  quantity  of  captured  stores.  But  he 
was  unable  to  escape  the  march  of  Tarleton,  who  had  been  'dis- 
patched from  the  victorious  British  army  in  pursuit,  The  Ameri- 
cans, having  been  four  days  without  sleep  or  provisions,  were  sur- 
prised at  Fishing  Creek,  and  completely  dispersed.  The  three  hun- 
dred prisoners  were  liberated,  and  all  the  stores  recaptured.  South 
Carolina  again  lay  prostrate  and  powerless  beneath  the  foot  of  the 
invader. 

These  repeated  disasters  would  have  overcome  a  man  of  less  firm- 
ness and  courage  than  Rutledge.  But  he  did  not  despair — he  did 
not  cease  to  hope  and  to  labor.  Placing  himself  in  communication 
with  the  remains  of  Gates'  army,  he  applied  all  his  energies  and 
influence  to  the  task  of  re-organizing  that  army,  and  keeping  it  in 
the  field.  His  services,  in  this  respect,  were  invaluable  ;  and  their 
worth  was  duly  estimated  by  the  penetrating  judgment  of  General 
Greene,  on  his  taking  the  command,  as  I  shall  presently  have  occasion 
to  notice. 

The  admirable  discernment  and  sagacity  of  Rutledge  were  dis- 
played in  a  remarkable  degree,  in  his  estimate  of  the  character  and 
ability  of  others.  His  keen  glance  penetrated  through  the  ranks  of 


JOHN  RUTLEDGE.  12g 

the  anny,  and  selected  for  the  highest  trusts  those  active  and  vigor- 
ous partisan  leaders,  who,  by  means  of  their  own  indomitable  energy 
and  unaided  resources,  revived  the  war  against  the  enemy,  brought 
hope  to  the  minds  of  the  despairing,  and  contributed,  in  no  small 
degree,  to  the  final  triumph.  By  virtue  of  his  authority  as  governor 
and  commander-in-chief,  he  commissioned  SUMPTER,  as  a  brigadier- 
general,  when,  after  the  fall  of  Charleston,  that  indefatigable  and 
gallant  soldier,  penetrating  into  the  thickets  and  swamps  of  South 
Carolina,  with  his  handful  of  adherents,  entered  upon  that  successful 
and  active  career  which  we  have  seen  checked,  but  by  no  means 
closed,  by  his  misfortune  at  Fishing  Creek.  He  conferred,  also,  the 
same  elevated  rank  upon  PICKENS  and  upon  FRANCIS  MARION,  the 
most  famous  partisan  leader  in  our  revolutionary  annals,  whom  we 
have  seen  commencing  his  service  as  a  captain  in  one  of  the  first 
regiments  raised  in  South  Carolina,  and  between  whom  and  Rutledge 
the  most  intimate  confidence  subsequently  existed.  The  same  quick 
perception  of  high  military  endowments  led  him  to  discover  the 
great  capacity  of  Col.  Morgan,  and  to  urge  successfully  upon  Con' 
greifc  the  claims  of  that  gallant  officer  to  be  made  a  Brigadier-Gen- 
eral. These  claims  were  recognized  ;  the  commission  was  issued  ; 
Greene,  on  his  arrival  at  the  southern  camp,  found  Morgan  at  the 
head  of  his  riflemen  in  Gates'  army ;  and,  dividing  his  forces, 
entrusted  him  with  a  separate  command.  The  glorious  victory  of 
the  Cowpens  followed,  in  which  the  haughty  Tarleton,  at  the  head 
of  a  superior  force,  for  the  first  time  was  made  to  bite  the  dust. 
The  result  was  highly  honorable  to  the  American  arms,  and  while  it 
covered  Morgan  and  his  troop  with  renown,  furnished  proof  of  the 
wisdom  and  discernment  of  both  Rutledge  and  the  commanding 
General. 

It  appears  that  Gov.  Rutledge  remained  with  the  army  after  the 
defeat  of  Gates  on  the  16th  of  August,  1780,  up  to' the  time  of  the 
arrival  of  the  new  commander,  General  Greene.  Heretofore  the 
selection  of  a  commander-in-chief  in  the  southern  department  had 
been  made  by  Congress.  General  Lee  had  been  assigned  to  this 
post  in  1776  ;  General  Lincoln,  a  brave,  experienced,  and  meritori- 
ous officer,  took  the  command  during  the  campaign  which  resulted  in 
the  unfortunate  capitulation  of  Charleston*,  and  Gen.  Gates,  the 
9 


130  LIVES  OF  THE  CHIEF-JUSTICES. 

most  distinguished  officer  in  the  service,  succeeded  him  in  that  unfor- 
tunate campaign  which  ended  in  the  rout  at  Camden.  The  duty  of 
selecting  a  commander-in-chief  in  the  southern  department  was  now 
imposed  by  Congress  on  Washington.  It  was  observed  at  the  com- 
mencement of  this  sketcli  that  the  wisdom  and  sagacity  of  Wash- 
ington were  never  displayed  in  a  more  striking  manner  than  in  his  ap- 
pointments to  places  of  high  official  trust  and  responsibility.  Upon 
the  present  occasion,  his  discriminating  judgment  amounted  almost 
to  prescience.  His  choice  fell  upon  Nathaniel  Greene,  an  officer 
whose  subsequent  brilliant  career  merited  the  handsome  compliment 
passed  upon  him  by  the  officers  of  the  army  in  a  series  of  resolutions, 
expressing  the  articles  of  their  faith,  one  of  which  was  to  the  effect, 
that  "  Nathaniel  Greene  was  born  a  General." 

The  American  army  had  moved  down  from  Hillsborough  to 
Charlotte,  and  Greene  arrived  at  head-quarters  on  the  2d  of  Decem- 
ber, 1180.  Here,  it  seems,  he  met  Rutledge.  Each  of  these  dis- 
tinguished men,  at  a  glance,  appreciated  and  comprehended  the 
other.  Each  looked  upon  the  other  as  a  man  of  commanding 
genius  and  great  capacity,  and  the  confidence  of  mutual  esteem'and 
respect  was  at  once  established  between  them.  To  Greene,  Rut- 
ledge  appeared  "the  first  character"  he  had  ever  met  with  ;  and  to 
Rutledge,  the  commanding  general  was  from  the  outset,  as  he  after- 
wards officially  expressed  it,  "  the  great  and  gallant  General 
Greene." 

It  required,  however,  all  the  energies  and  resources  of  these  two 
distinguished  men  to  reassure  the  troops,  to  furnish  them  food  and 
clothing,  and,  in  short,  to  reconstruct  from  nothing,  the  southern 
army.  Offensive  operations  seemed  to  be  desperate  and  chimerical. 
The  entire  force  of  the  American  army  at  the  south  was  but  about  two 
thousand  men,  continentals  and  militia.  They  were  without  pay 
and  almost  without  clothing  ;  to  say  nothing  of  ammunition.  The 
procuring  of  provisions  was  of  itself  a  most  difficult  matter. 
Impressment  seemed  to  be  the  only  source  ;  and  the  country  had 
been  so  ravaged  that  all  which  could  be  obtained,  even  in  that  way, 
was  far  from  sufficient.  In  order  to  carry  on  the  business  in  the 
least  offensive  way,  and  not  to  alienate  the  people,  the  duty  of 
impressment  was  transferred  from  the  military  to  the  civil  authority. 


•%         JOHN  RUTLEDGE.  131 

In  this  emergency,  the  assistance  of  Rutledge  was  of  the  highest 
importance.  Greene  expresses  his  indebtedness  to  him  soon  after  the 
battle  of  the  Cowpens,  in  one  of  his  communications,  from  which  I 
extract  the  following  passage  :  "  The  situation  of  these  States  is 
wretched,  and  the  distress  of  the  inhabitants  beyond  all  description. 
Nor  is  the  condition  of  the  army  more  agreeable.  We  have  but  few 
troops  that  are  fit  for  duty,  and  all  those  are  employed  upon  different 
detachments,  the  success  of  which  depends  upon  time  and  chance.  We 
are  obliged  to  subsist  ourselves  by  our  own  industry,  aided  by  the  in- 
fluence of  Governor  Rutledge,  who  is  one  of  the  first  characters  I  ever  met 
with.  Our  prospects  are  gloomy,"  &c. 

Notwithstanding  this  almost  desperate  condition  of  affairs,  Greene 
took  the  field  during  the  winter  of  1780,  with  his  almost  naked 
troops,  without  food,  without  clothing,  marching  without  shoes  over 
frozen  and  flinty  roads,  which  gashed  the  feet  of  his  soldiers,  mark- 
ing with  blood  every  step  of  their  progress,  and  commenced  that 
series  of  masterly  and  brilliant  movements  which  finally  resulted  in 
the  liberation  of  South  Carolina,  and  the  capture  of  Cornwallis  in 
Virginia.*  The  great  qualities  of  Greene  were  coolness,  courage,  and 
caution.  He  entered  into  action  with  no  arrogant  confidence  of 
success,  nor  without  counting  the  cost  of  disaster,  and  making  pre- 
parations for  retreat.  Unlike  his  predecessor  at  Camden,  he  never 
went  into  battle  without  leaving  his  baggage  and  stores  a  sufficient 
distance  in  the  rear.  Hence  defeat  never  disconcerted  or  disheart- 
ened him  ;  though  beaten,  he  was  never  vanquished ;  at  every 
overthrow,  he  arose,  Antseas-like,  broader  and  stronger  from  the  fall. 
I  shall  not  follow  him  during  that  toilsome  and  terrible  campaign, 
which,  ending  with  the  brilliant  battle  of  Eataw  Springs,  virtu- 
ally destroyed  the  British  power  in  the  South,  and  liberated  the 
State  of  South  Carolina.  It  comprised  a  series  of  marches,  battles, 
and  military  maneuvres,  whose  success  would  have  done  credit  to  the 
genius  of  the  most  skilful  and  veteran  commander. 

Rutledge,  it  seems,  was  at  the  camp  at  Haw  River,  March  8th, 

*  After  the  battle  at  Guilford  Court  House,  though  Lord  Cornwallis  was  osten- 
sibly the  victor,  he  retreated  to  Wilmington,  and  from  thence,  instead  of  return- 
ing to  South  Carolina,  retired  into  Virginia,  where  he  remained  until  captured  at 
Yorktown. 


132  LIVES  OF  THE  CHIEF-JUSTICES. 

1181.  From  this  point,  he  addresses  a  letter  to  General  Marion, 
declaring  his  intention  of  proceeding  to  Philadelphia  in  a  few  days, 
with  a  view  of  procuring,  if  possible,  some  supplies  of  clothing  for 
the  militia,  whose  distress  for  want  of  it  gave  him  great  concern.* 
This  mission  was  undoubtedly  undertaken  at  the  urgent  request  of 
General  Greene,  and  was  the  more  readily  undertaken,  because  he 
says  his  remaining  could  be  of  little  service  to  the  State,  inasmuch 
as  it  had  become  impracticable  to  return  immediately  into  South 
Carolina,  or  even  if  that  were  possible,  to  re-establish  a  eivil  gov- 
ernment there,  for  some  time.  His  watchful  care  over  the  provin- 
cial militia  is  also  manifest  in  this  communication.  He  speaks  of 
sending  to  Marion  some  blank  commissions,  and,  in  the  mean  time, 
authorizes  him  to  give  brevets,  and  in  order  to  maintain  sufficient 
authority  over  the  officers  in  his  brigade,  empowers  him  to  remove 
any  of  them,  and  appoint  others  in  their  stead.  He  has  sent,  he 
says,  some  linen,  to  be  distributed  among  Marion's,  Sumpter's,  and 
Pickens'  brigades,  as  a  free  gift  from  the  States,  and  requests  Marion 
to  send  him,  by  express  to  Gen.  Greene,  a  list  of  such  articles  of 
clothing  as  he  may  need,  with  a  view  of  obtaining  them  at  Phila- 
delphia. 

On  the  retreat  of  Cornwallis  to  Virginia,  General  Greene  at  once 
marched  into  South  Carolina,  and,  in  conjunction  with  those  active 
partisan  leaders,  Marion,  Surnpter,  and  Pickens,  commenced  offensive 
operations  against  the  British  and  tories.  His  efforts  during  the 
spring  and  summer  were  crowned  with  great  success,  and  the  enemy 
were  dispossessed  of  most  of  their  posts  in  the  upper  country,  and 
driven  back  into  the  vicinity  of  Charleston.  The  time  had  now 
arrived  for  Rutledge  to  return,  and  again  establish  civil  government 
over  the  wasted  and  desolate  country.  Clothed  with  ample  power 
for  that  purpose,  he  set  about  this  important  work  witli  his  charac- 
teristic ability  and  energy  ;  and  sustained  as  he  now  was  by  the 

*  His  mission  to  Philadelphia  seems  to  have  been  not  entirely  unsuccessful. 
The  following  is  an  extract  from  the  Journal  of  Congress,  of  June  20th,  1781 : 
"  On  motion  of  Mr.  Matthews,  seconded  by  Mr.  Bee,  Resolved,  that  the  board  of 
war  be  directed  to  furnish  Governor  Rutledge  with  four  wagons  for  transporting 
clothing  to  the  State  of  South  Carolina,  which  wagons,  when  discharged  by  the 
said  Gov.  Rutledge,  to  be  delivered  over  to  the  orders  of  the  commanding  general 
of  the  Southern  army." 


*      JOHN  RUTLEDGE.  133 

strong  arm  of  a  military  force,  his  proclamations  and  ordinances  con- 
tributed greatly  to  the  re-establishment  of  order  and  law  among  the 
citizens  of  the  State. 

His  first  proclamation  is  issued  under  the  great  seal  of  the  State, 
from  the  high  hills  of  the  Santee,  on  the  5th  of  August,  1781,  and 
is  directed  against  those  marauders,  who,  under  pretence  of  indem- 
nifying themselves  for  losses  of  property,  or  that  such  property 
belonged  to  tories  or  the  enemies  of  the  State,  had  committed  and 
continued  to  commit  "  most  wanton  and  rapacious  acts  of  plunder- 
ing." In  case  such  plundered  property  is  not  immediately  restored, 
or  these  practices  are  repeated,  he  threatens  "  speedy  and  effectual 
punishment "  on  the  offenders  ;  and  he  charges  the  civil  officers  of  the 
State  to  bring  all  such  culprits  to  justice,  and  commands  the  military 
officers  to  lend  their  aid  to  the  civil  power.  By  such  timely  and 
vigorous  measures,  Rutledge  in  a  short  tune  succeeded  in  re-estab- 
lishing order  and  security  in  such  parts  of  the  State  as  had  been 
recovered  from  the  enemy.  Magistrates  were  appointed,*  property 
secured,  and  confusion  and  anarchy  gave  place  to  order  and  regular 
government. 

Some  of  the  measures  of  Rutledge,  at  this  period,  were  harsh  and 
severe,  but  necessarily  and  justly  so.  Clothed  with  an  arbitrary  and 
dictatorial  power,  he  retaliated  with  a  heavy  hand  upon  the  royal- 
ists. Xor  did  he  shrink  from  bringing  odium  upon  his  own  author- 
ity, among  the  friends  of  the  State,  by  resorting  to  impressment, 
when  necessary,  to  sustain  his  lieutenants  in  the  field,  or  the  army 
of  Greene  in  its  now  successful  career  against  the  enemy.  In  order 
to  raise  money  and  means,  he  had  undertaken,  on  his  return  from 
Philadelphia,  to  put  in  operation  the  ideas  he  had  obtained  from 
that  able  financier,  Robert  Morris,  in  relation  to  the  establishment 
of  a  bank  ;  f  but  his  route  lying  through  a  tract  of  country  where 
the  inhabitants  were  little  acquainted  with  commerce,  he  unfortu- 

*  So  early  as  the  13th  August,  1781,  and  before  the  battle  of  Eutaw,  he  writes 
to  Marion,  expressing  his  intention  of  appointing  Ordinaries  in  each  District,  to 
prove  wills,  grant  letters  testamentary,  and  transact  other  business  within  the 
jurisdiction  of  such  officers ;  and  requests  Marion  to  recommend  suitable  persons 
who  will  undertake  the  offices  of  Ordinary  for  the  Georgetown,  Cheraw,  and 
Charleston  Districts. 

f  See  subsequent  sketch  of  Chief-Justice  Ellsworth. 


134:  LIVES  OF  THE  CHIEF-JUSTICES. 

nately,  as  Greene  informed  Morris,  "  met  with  none  who  were  will- 
ing to  interest  themselves  in  a  bank."  Money  or  its  equivalent, 
however,  must  be  had,*  and  Rutledge  did  not  hesitate  to  resort  to 
the  law  of  extreme  necessity.  We  find  him  soon  after,  directing 
the  seizure  of  a  large  quantity  of  indigo,  and  placing  it  to  the 
credit  of  the  army.  "I  have  appointed  Captain  Richardson,"  be 
writes  to  Marion,  "  to  procure  indigo  and  specie  for  public  use,  and 
request  that  you  will  give  him  every  assistance  in  your  power,  to  aid 
him  in  this  business.  If  he  should  want  an  escort,  or  any  military 
aid,  you  will  be  pleased  to  furnish  him."  In  regard  to  reprisals 
upon  the  British  and  royalists,  his  course  was  no  less  decided  and 
bold.  It  was,  however,  always  governed  by  motives  of  public 
policy,  and  never  by  a  spirit  of  wanton  revenge.  He  scorned  to 
imitate  the  barbarities  of  Tarleton,  or  that  cold-blooded  act  of 
cruelty  which  disgraces  the  memory  of  Lord  Rawdon,  the  murder 
of  the  gallant  Hayne.  That  "  last  and  stinging  outrage,"  as  it  has 
been  justly  called,  might  well  have  caused  the  flame  which  had  been 
kindled  in  Rutledge's  bosom  to  "burst  forth  with  consuming 
energy."  But  we  look  in  vain  for  any  "  comprehensive  system  of 
reprisals,"  or  act  of  retaliation,  which  is  not  strictly  justified  by  the 
laws  of  war,  as  well  as  in  accordance  with  an  enlarged  and  liberal 
policy.  Thus,  just  before  the  battle  of  Eutaw,  when  the  British 
ordered  the  wives  and  families  of  the  prisoners  who  had  been  taken 
at  the  capitulation  of  Charleston,  to  withdraw  from  the  State,  Rut- 
ledge  retaliated  by  sending  the  families  of  the  loyalists  aiid  adher- 
ents of  Britain,  within  the  enemy's  lines  at  Charleston.  "  Justice 
to  our  friends,"  he  remarks  in  a  letter  to  Marion,  "  whose  wives  and 
families  the  enemy  have  sent  out  of  the  State,  and  policy  require 
that  we  should  send  into  the  enemy's  lines  the  wives  and  families  of 
all  such  men  as  are  now  with  and  adhere  to  the  British."  And 
although  the  death  of  Hayne  had  already  taken  place,  and  Rutledge 
himself  had  witnessed  the  horrible  outrages  committed  by  the  infu- 

*  The  utter  destitution  of  the  army  and  the  great  scarcity  of  money  are  shown 
in  a  letter  from  Rutledge  to  his  favorite  lieutenant,  Marion,  in  charge  of  one  of 
the  military  districts  of  the  State.  It  is  dated  soon  after  Rutledge's  return :  "  I 
entirely  forgot,  when  I  saw  you  last,"  he  says,  "  to  mention  what  I  intended  be- 
fore we  met,  that  if  a  little  hard  money,  30  or  35  guineas,  would  be  useful  for 
getting  information,  or  other  service,  I  have  this  sum  ready  for  you." 


*    JOHN  RUTLEDGE.  135 

riated  royalists,  yet  he  immediately  adds  :  "  I  lament  the  distresses 
which  many  innocent  women  and  children  may  probably  suffer  by  this 
measure,  but  they  must  follow  the  fate  of  their  husbands  and  parents. 
Blame  can  only  be  imputed  to  the  latter,  and  to  the  British  command- 
ers, 'whose  conduct,  on  the  principle  of  retaliation,  justifies  this  step, 
which,  all  circumstances  considered,  is  an  indispensable  one."  He 
then  directs  Marion  to  give  the  necessary  orders  to  enforce  the  meas- 
ure within  the  district  of  his  brigade. 

The  impressments  ordered  by  Rutledge,  in  virtue  of  his  supreme 
civil  authority  in  the  State,  were  earned  out  with  as  much  leniency 
and  system  as  the  nature  of  the  case  allowed.  This  authority  he 
held  in  his  own  hand,  and  never  suffered  it  to  be  executed  except 
under  his  own  warrant.  Accordingly,  we  find  him  sharply  rebuking 
Col.  Horry,  who,  it  seems,  attempted  to  execute  such  a  power 
beyond  the  instructions  he  had  received.  "  I  know  of  no  authority," 
he  says  in  a  subsequent  letter  to  Marion,  "  that  any  continental 
officer,  or  any  other  person,  whoever  he  may  be,  has  to  impress  in 
this  State.  Gen.  Greene,  it  is  true,  did,  before  my  return,  direct 
him  (Col.  Horry)  to  impress,  but  he  has  never  (I  believe,  and  indeed 
I  am  well  persuaded  of  it)  since  my  return,  give  any  such  power  to 
any  one.  He  knows  better."  Rutledge  then  laments  the  abuse  of 
this  power,  which  furnished  so  just  a  cause  of  complaint  to  the  peo- 
ple, and  directs  Marion,  with  whom  he  seems  to  be  constantly  advised, 
and  in  whose  judgment  he  reposed  the  most  unlimited  confidence,  to 
correct  this  abuse,  as  far  as  it  might  be  practicable,  within  his  dis- 
trict :  "I  find  every  authority  may  be  abused,  and  perhaps  that 
which  I  have  given  on  this  head  may  be,  also.  Therefore,  to  cut 
the  matter  short,  wherever  you  find  that  it  is  wantonly  exercised, 
and  an  oppressive  and  improper  use  is  made  of  it,  within  the^district 
of  your  brigade,  I  give  you  full  authority  to  order  the  officer 
attempting  to  impress  such  subjects  to  cease  from  it,  or  to  have  them 
restored,  if  impressed.  It  would  give  me  great  pleasure  to  redress 
every  encroachment  on  the  liberties  of  the  people  ;  and  I  shall  cer- 
tainly do  so  as  far  as  my  power  extends,  in  any  of  the  cases  which  you 
say  you  will  mention  to  me  when  we  meet." 

The  celebrated  battle  of  Eutaw  was  fought  on  the  8th  of  Sep- 
tember, 1781.  Governor  Rutledge  was' present  in  this  engagement, 


136  LIVES  OF  THE  CHIEF-JUSTICES. 

and  acted  in  the  staff  of  General  Greene.  The  good  conduct  of 
the  South  Carolina  militia  and  State  troops  on  that  day,  was  a 
matter  of  pride  and  satisfaction  to  their  commander-in-chief.  The 
militia,  under  the  orders  of  Marion  and  Pickens,  formed  a  portion 
of  the  front  line,  and  the  eye  of  Rutledge  lighted  up  with  exultation 
as  it  witnessed  the  courage  and  firmness  with  which  they  advanced 
under  the  fire  of  the  British,  delivering  seventeen  rounds  before 
falling  back  for  support  upon  the  second  line,  formed  of  the  Mary- 
land and  Virginia  Continentals.  The  South  Carolina  State  Corps, 
under  the  gallant  Colonel  Henderson,  covered  the  left,  and  behaved 
with  equal  spirit  and  gallantry.  Their  good  conduct  on  that  day 
was  such  as  to  deserve  a  special  notice  in  the  resolutions  of  Congress, 
one  of  which  expressed  thanks  "  to  the  State  corps  of  South  Carolina, 
for  the  zeal,  activity  and  firmness  by  them  exhibited,  throughout  the 
engagement."  It  must  be  added,  that  the  North  Caroh'na  militia, 
forming  also  a  portion  of  the  front  line,  on  this  occasion,  behaved 
with  great  gallantry  and  spirit.* 

*  It  is  scarcely  possible  to  account  for  the  defection  and  shameful  conduct  of 
the  provincial  militia  in  some  of  the  actions  during  the  Revolution.  At  the  un- 
fortunate battle  of  Camden,  the  North  Carolina  militia  were  placed  in  the  centre 
and  the  Virginia  militia,  under  the  gallant  General  Stevens,  on  the  left.  As  Ste- 
vens was  leading  his  brigade  to  the  attack  and  had  advanced  within  fifty  paces  of 
the  British  column,  the  latter  charged  with  a  cheer,  and  the  Virginians,  throwing 
down  their  arms,  fled  in  the  utmost  disorder.  The  greater  part  of  the  militia  of 
North  Carolina  followed,  without  firing  a  shot,  leaving  the  Maryland  and  Dela- 
ware Continentals  to  sustain  the  brunt  of  the  battle.  At  the  battle  of  Guilford 
Court  House  the  same  mortifying  circumstance  took  place.  Greene  had  formed 
three  lines,  placing  the  North  Carolina  militia  in  the  front,  the  Virginia  militia  in 
the  second,  and  that  ever  reliable  and  heroic  corps  of  Maryland  Continentals,  with 
the  Virginia  Continentals,  in  the  rear.  As  the  British  advanced,  and  while  yet 
distant  140  yards,  the  North  Carolina  militia  gave  way,  most  of  them  without 
firing  a  shot.  The  Virginia  militia  behaved  better,  perhaps  under  the  good  influ- 
ence of  the  precaution  taken  by  General  Stevens,  who  had  posted  some  riflemen 
twenty  paces  in  the  rear  of  his  brigade,  with  orders  to  shoot  every  man  who 
should  leave  his  post. 

The  Continentals,  on  the  other  hand,  always  behaved.with  the  utmost  gallantry 
and  spirit.  They  fought  with  the  discipline  of  veterans,  and  the  heroism  of  men 
worthy  to  be  free.  It  may  with  truth  be  said,  that  no  better  soldiers  were  ever 
mustered  into  any  service  than  those  fourteen  hundred  gallant  troops  of  the  Mary- 
land and  Delaware  line  which  marched  under  Baron  De  Kalb  to  the  South,  and  so 


^  JOHN  RUTLEDGE.  137 

This  decisive  action  forced  back  the  enemy  to  their  lines  at 
Charleston,  extended  the  jurisdiction  of  the  Americans  over  nearly 
every  other  portion  of  the  State,  and  may  be  considered  as  closing 
the  war  in  South  Carolina.  The  civil  government,  represented  in 
the  person  of  Kutledge  on  the  field,  was  literally  re-established  in 
South  Carolina,  at  the  cannon's  mouth,  and  amid  the  smoke  and 
carnage  of  battle. 

Though  the  greater  part  of  the  State  was  thus  rescued  from  Bri- 
tish dominion,  yet  for  some  time  after  this,  no  other  civil  govern- 
ment was  established  than  the  authority  vested  in  Rutledge's  hands 
as  Governor  and  commander-in-chief.  His  proclamations  had  all 
the  force  and  effect  of  laws,  and  they  were  sustained,  as  far  as  was 
possible  in  those  unsettled  times,  by  the  military.  Thus,  a  few  days 
after  the  battle  of  Eutaw,  we  find  him  sending  to  Marion  copies  of 
three  proclamations,  which  he  promises  to  have  printed  "  as  soon  as 
a  press  can  be  got  to  work."  He  directs  Marion  to  deliver  to  each 
colonel  copies,  with  orders  to  read  them  at  the  head  of  his  regiment, 
and  circulate  through  the  district.  The  same  course  was  no  doubt 
pursued  in  regard  to  the  other  districts  of  the  State,  and  in  this 
manner  these  proclamations  or  temporary  laws  were  promulgated. 
One  of  the  proclamations  referred  to  directed  a  suspension  of  the 
acts  making  Continental  and  State  money  a  lawful  tender,  and 
directing  in  future  all  fines  to  be  paid  in  specie.  The  worthlessness 
of  the  paper  currency,  it  seems,  had  rendered  fines  nugatory,  and  the 
public  exigencies  demanded  that  where  the  law  directed  a  penalty  it 
should  be  rigorously  enforced. 

About  the  same  time  also  he  writes  to  Marion  for  counsel  and 
advice  in  regard  to  a  very  important  subject,  namely,  as  to  the  poli- 
cy of  offering  a  free  pardon  to  such  as  had  joined  the  enemy,  with 

nobly  sustained  themselves  after  the  flight  of  the  militia  on  the  fatal  field  of  Cam- 
den.  Every  man  was  a  hero,  and  those  who  fell,  like  the  slaughtered  Athenians 
at  Marathon,  deserved  their  names  inscribed  upon  a  monument  erected  on  the 
field.  "  You  may  judge  of  the  virtues  of  our  small  army,"  writes  Baron  De  Kalb 
a  day  or  two  before  the  battle,  "  from  the  following  fact :  we  have  for  several 
days  lived  on  nothing  but  peaches,  and  I  have  not  heard  a  complaint.  There  has 
been  no  desertion."  Such  men,  equally  armed,  under  a  general  like  De  Kalb  or 
Greene,  on  a  fair  field,  would  have  proved  invincible  to  any  thing  but  superior 
numbers. 


138  LIVES  OF  THE  CHIEF-JUSTICES. 

liberty  to  them  and  their  families  to  return  and  occupy  their  pos- 
sessions, on  certain  conditions.  "  This  is  a  nice  point,"  he  observes, 
"  and  I  don't  know  how  it  will  be  relished  by  our  friends.  You 
know  mankind  generally  judge  of  the  propriety  of  measures  from 
events."  The  advice  of  Marion  seems  to  have  been  favorable  to  the 
proposed  measure.  The  proclamation  was  issued  under  the  great 
seal  of  State,  at  the  American  camp,  at  the  high  hills  of  Santee,  on 
the  21th  of  September,  1181.  It  is  a  bold,  but  calm  and  dignified 
production,  setting  forth  frankly  the  condition  of  affairs  in  the  State, 
and  alluding  with  confidence,  but  without  arrogance,  to  the  pros- 
perous condition  of  the  American  cause,  and  the  certainty  of  its 
ultimate  triumph.  It  offers  full  and  free  pardon  for  the  offence  of 
bearing  arms  with,  or  adhering  to  the  enemy,  on  condition  that  the 
persons  accepting  shall  within  thirty  days  from  date  surrender  them 
selves,  and  engage  to  serve  six  months  in  the  militia  of  the  State — 
excepting,  however,  those  who  had  signed  the  congratulatory  ad- 
dresses to  Clinton  and  Cornwallis,  those  who  held  civil  or  military 
commissions  under  the  British  government,  and  some  others.  The 
proclamation  closes  with  the  following  noble  and  dignified  expres- 
sions: "At  a  juncture  when  the  force  of  the  enemy  in  this  State, 
though  lately  considerable,  is  greatly  reduced  by  the  many  defeats 
which  they  have  suffered,  and  particularly  at  the  late  important 
action  at  Eutaw  ;  when  they  are  dispossessed  of  every  post  and  gar- 
rison except  Charleston ;  when  the  formidable  fleet  of  his  most 
Christian  Majesty  in  Chesapeake  Bay,  and  the  combined  armies  of 
the  King  of  France  and  of  the  United  States,  under  the  command 
of  his  Excellency  General  Washington,  in  Yirginia,  afford  a  well- 
grounded  hope  that  by  the  effort  of  their  armies,  this  campaign  will 
be  happily  terminated,  and  the  British  power  in  every  part  of  the 
confederate  states  soon  totally  annihilated ;  it  is  conceived  that  the 
true  and  real  motive  of  the  offer  hereby  made  will  be  acknowledged. 
It  must  be  allowed  to  proceed  not  from  timidity,  to  which  the 
enemy  affect  to  attribute  every  act  of  clemency  and  mercy  on  our 
part,  but  from  a  wish  to  impress  with  a  sense  of  their  error,  and  to 
reclaim  misguided  subjects,  and  give  them  once  more  an  opportunity 
of  becoming  valuable  members  of  the  community,  instead  of  banish- 
ing them,  or  forever  cutting  them  off  from  it ;  for  even  the  most 


JOHN  RUTLEDGE.  139 

disaffected  cannot  suppose  that  the  brave  and  determined  freemen 
of  this  State  have  any  dread  of  their  arms. 

"  With  the  persons  to  whom  this  pardon  is  thus  offered,  the  choice 
still  remains,  either  to  return  to  their  allegiance,  and  with  their 
families,  be  restored  to  the  favor  of  their  country,  and  to  their  pos- 
sessions, or  to  abandon  their  properties  in  this  State  forever,  and  go 
with  their  wives  and  children,  whither,  for  what  purpose,  on  whom 
to  depend,  or  how  to  subsist,  they  know  not — most  probably  to  ex- 
perience in  some  strange  and  distant  country,  all  the  miseries  and 
horrors  of  beggary,  sickness,  and  despair.  This  alternative  is  now 
for  the  last  time  submitted  to  their  judgment.  It  will  never  be 
renewed." 

In  a  few  weeks  several  hundred  of  the  royalists  come  out  of  the 
British  lines  upon  this  proclamation,  and  greatly  reinforced  the 
American  militia. 

The  time  was  now  approaching  when  Rutledge  was  to  surrender 
his  dictatorship  into  the  hands  of  those  who  had  conferred  it.  No 
General  Assembly  had  convened  in  the  State  since  the  fall  of 
Charleston.  The  time  was  auspicious  for  summoning  together  the 
legislative  body.  Most  of  the  civil  officers  of  the  State,  and  mem- 
bers of  the  Legislature,  who  had  either  fled  or  been  captured,  had 
now  found  their  way  back,  and  the  American  army  lay  posted  within 
thirty-six  miles  of  Charleston,  the  last  stronghold  of  British  power 
in  the  State.  Rutledge  accordingly  issued  writs  for  an  election  of 
members  to  a  General  Assembly,  appointed  by  him  to  convene  on 
the  8th  of  January,  1782,  at  Jacksonborough,  a  small  village  on  the 
Edisto  river,  about  thirty-five  miles  from  Charleston.  A  letter  to 
Marion,  of  the  23d  of  November,  relates  to  this  subject,  and  encloses 
some  of  these  writs  for  distribution.  They  were  probably  distrib- 
uted in  the  same  manner  through  the  other  districts.  The  Governor 
himself,  by  virtue  of  his  extraordinary  authority,  prescribed  the 
mode  of  holding  these  elections,  and  the  qualifications  of  the  voters. 
The  polls  were  directed  to  be  held  in  "  the  usual  places,"  where  it 
was  practicable,  and  in  other  cases  as  near  as  safety  and  other  cir- 
cumstances would  permit.  None  were  allowed  to  vote  but  such  as 
had  never  taken  British  protection,  or  having  taken  it,  had  rejoined 


140  LIVES  OF  THE  CHIEF-JUSTICES. 

their  countrymen  on  or  before  the  2tth  of  September,  If  81.     All 
others  were  excluded  from  the  elective  franchise. 

Not  only  did  Rutledge  discharge  the  duty  of  convening  this  As- 
sembly, but  the  care  of  making  provision  for  its  subsistence  seems 
also  to  have  exclusively  rested  upon  him.  In  these  primitive  and 
revolutionary  days,  members  of  the  legislative  body  were  doubtless 
relieved  from  all  concern  of  mind  in  regard  to  their  per  diem,  but  the 
question  whether  they  would  be  able  to  get  any  thing  to  eat  or  not, 
might  certainly  become  one  of  much  more  serious  import.  The  pro- 
vidence of  Rutledge  had  guarded  against  any  misfortune  in  this  re- 
spect. His  mind  was  admirably  adapted  to  the  details  of  business 
— small  or  great,  he  suffered  none  to  escape  him.  In  a  letter  to 
Marion  two  or  three  weeks  before  the  opening  of  the  Jacksonborough 
Assembly,  he  writes :  "I  wish  to  procure  twelve  barrels  of  rice  for 
the  use  of  the  Assembly,  at  their  intended  meeting  on  the  8th  of  next 
month.  Be  pleased  to  have  that  quantity  procured  as  high  up 
Santee  River  as  it  can  be  got,  and  let  me  know  as  soon  as  possible 
where  it  is,  that  I  may  order  wagons  down  to  fetch  it  from  thence 
to  Camden  in  time."  The  idea  of  keeping  members  of  the  Legisla- 
ture on  an  allowance  of  rice,  may  perhaps  excite  a  smile  in  our  day, 
but  no  doubt  the  gentlemen  for  whom  this  provision  had  been  made 
were  abundantly  satisfied.  The  revolutionary  fire  had  swept  over 
the  harvest  fields  of  South  Carolina,  and  to  the  civilian  as  to  the 
soldier,  the  certainty  of  obtaining  rations  at  all  was  of  vastly  more 
importance  than  their  kind  or  quality.*  The  men  of  Marion  and 
Sumpter  had  fared  much  worse  in  their  hiding-places  in  the  woods 
and  swamps.  De  Kalb's  gallant  army  had  uttered  no  complaint 
while  marching  under  arms  without  any  food,  except  half-ripe  fruit, 
for  several  days  before  the  battle  of  Camden.  Greene's  soldiers  had 
penetrated  into  South  Carolina  with  little  to  eat,  and  almost  as 
naked  as  they  were  born — having  green  moss  about  their  loins  and 
shoulders,  to  protect  them  from  the  galling  effect  of  their  belts  and 
knapsacks.  Perhaps  we  shall  see  these  rice-fed  members  of  the 

*  If  the  twelve  barrels  constituted  the  entire  supply,  their  contents  without 
doubt  would  have  measured  the  duration  of  the  session  with  an  accuracy  as  uner- 
ring as  those  ingenious  constitutional  provisions  in  some  of  the  states  which  stop 
the  pay  of  the  members  after  a  limited  number  of  days. 


*  JOHN  RTJTLEDGE.  141 

South  Carolina  Assembly  conducting  themselves,  in  their  legislative 
capacity,  with  the  same  spirit  which  marked  the  action  of  the  half- 
starved,  half-clothed  troops  of  Greene  and  De  Kalb,  and  the  men  of 
Sumpter  and  Marion. 

The  Assembly  convened  at  the  appointed  day  and  place.  It  pre- 
sented, says  a  writer,  the  appearance  of  a  parliament  of  feudal 
barons.  Many  of  its  members,  like  Gen.  Marion,  were  drawn  from 
the  army,  and  most  of  them  had  seen  service  in  the  camp  and  the 
field.  Their  deliberations  were  carried  on  under  the  protection  of 
the  American  cannon,  for  the  army  of  Greene  had  been  set  in  motion 
to  take  a  position  between  the  place  of  their  meeting  and  a  British 
post  below.  Rutledge  met  the  two  houses  soon  after  the  opening 
of  the  session,  and  addressed  them  in  a  speech  of  some  length,  in 
which,  with  rather  more  than  his  natural  warmth  of  language  and 
asperity  of  temper,  he  alluded  to  the  nnprovoked  outrages  committed 
by  the  enemy,  the  desolation  which  lawless  violence  and  rapine  had 
brought  upon  the  land,  and  the  proud  triumph  which  had  finally 
been  achieved.  Looking  abroad  as  he  did  at  the  wide-spread  ruin 
and  devastation  around  him — over  a  land  thickly  strewn  with  the 
ashes  of  hamlets  and  villages  destroyed,  and  still  wet  with  the  blood 
of  its  sons,  his  natural  impetuosity  broke  forth  into  something  like 
the  language  of  bitter  denunciation,  and  indeed  we  can  well  under- 
stand the  burning  indignation  which  prompted  such  sentences  as 
these  : 

"  Regardless,  therefore,  of  the  sacred  ties  of  honor,  destitute  of 
the  feelings  of  humanity,  and  determined  to  extinguish,  if  possible, 
every  spark  of  freedom  in  this  country,  they,  with  the  insolent  pride 
of  conquerors,  gave  unbounded  scope  to  the  exercise  of  their  tyran- 
nical disposition,  infringed  their  public  engagements  and  violated 
their  most  solemn  capitulations.  Many  of  our  worthiest  citizens 
were,  without  cause,  long  and  closely  confined,  some  on  board  of 
prison  ships,  and  others  in  the  town  and  castle  of  St.  Augustine,* 
their  properties  disposed  of  at  the  will  and  caprice  of  the  enemy,  and 
their  families  sent  to  a  different  and  distant  part  of  the  continent, 
*  His  two  brothers,  Edward  and  Hugh  Rutledge,  with  LieutenautrGoveraor 
Gadsden  and  most  of  the  civil  and  military  officers,  prisoners  on  parole,  after  the 
fall  of  Charleston,  had  been  seized  by  order  of  Cornwallis  aqd  transported  to  St. 
Augustine. 


142  LIVES  OF    THE  CHIEF-JUSTICES. 

without  the  means  of  support.  Many  who  had  surrendered  as  pris- 
oners of  war,  were  killed  in  cold  blood ;  several  suffered  death  in 
the  most  ignominious  manner,  and  others  were  delivered  up  to  sav- 
ages, and  put  to  tortures  under  which  they  expired.  Thus  the  lives, 
liberties  and  properties  of  the  people  were  dependent  solely  on  the 
pleasure  of  British  officers,  who  deprived  them  of  either,  or  all,  on 
the  most  frivolous  pretences.  Indians,  slaves,  and  a  desperate 
banditti  of  the  most  profligate  characters,  were  caressed  and 
employed  by  the  enemy  to  execute  their  infamous  purposes.  Devas- 
tation and  ruin  marked  their  progress  and  that  of  their  adherents, 
nor  were  their  violences  restrained  by  the.  charms  or  influence  of 
beauty  and  innocence.  Even  the  fair  sex,  whom  it  is  the  duty  of 
all,  and  the  pleasure  and  pride  of  the  brave,  to  protect,  they,  and 
their  tender  offspring,  were  victims  to  the  inveterate  malice  of  an 
unrelenting  foe.  Neither  the  tears  of  mothers,  nor  the  cries  of 
infants  could  excite  in  their  breasts  pity  or  compassion.  'Not  only 
the  peaceful  habitations  of  the  widow,  the  aged  and  the  infirm,  but 
the  holy  temples  of  the  Most  High,  were  consumed  in  flames,  kin- 
dled by  their  sacrilegious  hands.  They  have  tarnished  the  glory  of 
the  British  arms,  disgraced  the  profession  of  a  British  soldier,  and 
fixed  indelible  stigmas  of  rapine,  cruelty,  perfidy  and  profaneness  on 
the  British  name.  But  I  can  now  congratulate  you,  and  I  do  so 
most  cordially,  on  the  pleasing  change  of  affairs,  which,  under  the 
blessing  of  God,  the  wisdom,  prudence,  address,  and  bravery  of  the 
great  and  gallant  General  Greene,  and  the  intrepidity  of  the  officers 
and  men  under  his  command,  has  been  happily  effected — a  general 
who  is  justly  entitled,  from  his  many  signal  services,  to  honorable 
and  singular  marks  of  your  approbation  and  gratitude.  His  suc- 
cesses have  been  more  rapid  and  complete  than  the  most  sanguine 
could  have  expected.  The  enemy,  compelled  to  surrender  or  evacu- 
ate every  post  which  they  held  in  the  country,  frequently  defeated 
and  driven  from  place  to  place,  are  obliged  to  seek  refuge  under  the 
walls  of  Charleston,  and  on  islands  in  its  vicinity.  We  have  now 
the  full  and  absolute  possession  of  every  other  part  of  the  State  ; 
and  the  legislative,  executive  and  judicial  powers  are  in  the  free 
exercise  of  their  respective  authorities." 

The  whole  of  the   address  from  which  the  foregoing   extract  is 


*  JOHN  RUTLEDGE.  ^43 

taken,  breathes  the  same  spirit.  He  speaks  with  confidence  of  the 
preservation  of  the  independence  of  the  State,  but  earnestly  urges 
the  raising  and  equipping  of  a  respectable  perinameiit  force.  He 
also  calls  the  attention  of  the  Legislature  to  the  necessity  of  a  tho- 
rough organization  of  the  militia,  to  the  state  of  the  currency,  and 
some  other  matters  of  interest,  among  which,  is  the  treatment 
proper  to  be  adopted  toward  such  of  the  royalists  as  refused  to 
come  in  under  the  proclamation.  "It  is  with  you,"  he  says, 
"  whether  the  forfeiture  and  appropriation  of  their  property  should 
now  take  place."  But  at  the  same  time  adds  his  opinion,  that  if 
such  should  be  the  determination  of  the  Assembly,  "  it  will  redound 
to  the  reputation  of  this  State  to  provide  a  becoming  support  for 
the  families  of  those  whom  you  may  deprive  of  their  property." 

This  part  of  the  suggestion  in  the  Governor's  speech,  was  promptly 
acted  upon.  A  law  was  introduced  for  confiscating  the  estates  and 
banishing  the  persons  of  the  most  active  friends  of  the  British  Gov- 
ernment, and  for  amercing  the  estates  of  others,  as  a  substitution 
for  those  personal  services  of  which  the  country  had  been  deprived. 
Though  the  law  was  opposed  by  Gen.  Gadsden,  and  other  influential 
members,  it  passed  by  a  large  majority.  It  included  two  hundred 
and  thirty-seven  persons  and  estates  in  the  first  class,  and  forty-eight 
in  the  last.  This  arbitrary  and  severe  measure,  though  perhaps 
strictly  justifiable  by  the  laws  of  war,  has  been  generally  disap- 
proved since  that  time  Rutledge  was  taxed  by  Cassius,  a  political 
writer,  with  being  the  author  of  the  act ;  but  from  the  testimony  of 
one  who  was  on  the  spot  at  the  moment  the  bill  passed,*  there  is 
every  reason  to  believe  that,  though  approved,  it  certainly  did  not 
originate  with  him.  It  is  proper  to  add,  that  though  the  law  was 
in  the  first  instance  executed,  yet  its  harsh  features  were  afterwards 
relaxed.  In  conformity  to  the  treaty  of  peace  and  the  recommenda- 
tion of  Congress,  the  Legislature  permitted  the  greater  part  of  the 
exiles  to  return.  Thirty-one  were  fully  restored  to  their  property 
and  citizenship,  thirty-three  were  disqualified  from  holding  any  place 
of  trust  within  the  State  for  seven  years,  and  they,  with  sixty-two 
others,  were  relieved  from  total  confiscation,  by  paying  twelve  per 
cent,  on  the  equitable  value  of  their  property. 

*  Mr.  Alexander  Garden.    See  his  Anecdotes  of  the  American  Revolution. 


144  LIVES  OF  THE  CHIEF-JUSTICES. 

The  Senate  and  the  House  of  Representatives  returned  separate 
addresses  to  the  Governor,  responding  in  the  warmest  terms  to  the 
sentiments  contained  in  his  speech.  Each  of  these  addresses  con- 
tained, also,  a  flattering  personal  compliment,  in  the  assurance  which 
it  conveyed  of  the  entire  approbation  with  which  his  conduct  was 
regarded  by  the  representatives  of  the  people.  Upon  this  point 
there  seemed  to  be  no  dissenting  voice.*  "  It  is  with  peculiar 
pleasure,"  says  the  address  of  the  Senate,  "  that  we  take  the  earliest 
opportunity  to  present  to  your  Excellency  our  unfeigned  thanks  for 
your  unwearied  zeal  and  attention  to  the  real  interests  of  this  coun- 
try, and  to  testify  our  entire  approbation  of  the  good  conduct  of  the 
Executive  since  the  last  meeting  of  the  General  Assembly."  The 
language  of  the  House  of  Representatives  was  no  less  flattering. 
After  alluding  to  the  happy  re-establishment  of  law  and  government, 
it  adds  :  "This  auspicious  change  is  in  a  great  degree  owing  to  the 
prudence,  firmness,  and  good  conduct  of  your  Excellency.  If  any- 
thing can  add  to  the  sublime  aud  refined  enjoyment,  which  must 
arise  from  your  Excellency's  own  reflections  on  your  persevering, 
unabated,  and  successful  exertions  towards  rescuing  your  country 
from  the  iron  hand  of  oppression,  be  pleased,  sir,  to  accept  the  most 
sincere  and  unfeigned  thanks  of  your  grateful  fellow-citizens." 

The  term  for  which  Rutledge  had  been  elected  Governor  had  now 
expired.  By  an  unfortunate  provision  of  the  Constitution,  no  person 
was  eligible  to  the  office  of  Governor  for  more  than  two  years  out 
of  a  period  of  six,  and  the  State  was  therefore  deprived,  at  this 
important  juncture,  of  his  services,  in  an  office  in  the  discharge  of 
whose  duties  he  had  displayed  such  great  capacity.  The  Legislature 
thereupon  proceeded  to  elect  Christopher  Gadsden,  but  that  veteran 
patriot,  who  had  served  the  State  in  various  stations  for  thirty 
years,  declined,  on  account,  as  he  alleged,  of  the  increasing  infirmi- 
ties of  old  age,  and  being  satisfied  that  the  times  required  the  vigor 
and  activity  of  the  prime  of  life.  He  would  cheerfully,  he  said, 

*  "  Above  every  other  trait  of  character,  it  must  redound  to  the  honor  of  John 
Rutledge,  possessing  dictatorial  powers,  that  the  justice  and  equitable  current  of 
hia  administration,  never  engendered  the  slightest  murmur,  nor  gave  birth  to  a 
single  complaint.  So  mild,  indeed,  and  conciliating  were  all  his  actions,  that 
obedience  went  hand  in  hand  with  command,  and  the  ardor  of  zeal  seemed  rather 
to  solicit  service  than  seek  the  means  of  avoiding  it."—  Garden's  Anecdotes. 


^  JOHN  RUTLEDGE.  2.45 

make  one  of  a  forlorn  hope  in  an  assault  on  the  lines  of  Charleston, 
if  it  was  probable  that  with  the  certain  loss  of  his  life,  the  citizens 
of  South  Carolina  would  be  reinstated  in  the  possession  of  their 
capital.  But  he  declined  an  office  in  which  he  feared  he  could  ren- 
der no  good  service.  Thereupon,  the  Assembly  chose  the  Honora- 
ble John  Mathews,  who  was  subsequently  one  of  Rutledge's  colleagues 
on  the  bench,  to  the  office  of  Governor.  They  also  filled  up  the 
vacancies  in  the  different  departments,  and  re-established  civil  govern- 
ment in  all  its  branches. 

Mr.  Rutledge  was  not  permitted  to  retire  from  the  service  of  the 
State.  On  the  termination  of  his  Executive  duties,  he  was  at  once 
elected  a  member  of  Congress,  and  took  his  seat  in  that  body  on  the 
2d  of  May,  1782.  In  this  situation,  he  was  immediately  called 
upon  to  perform  an  extraordinary  duty.  The  surrender  of  Corn- 
wallis  at  Yorktown  terminated  the  war  of  Independence  ;  so,  at 
least,  it  seemed  to  the  people  and  governments  of  the  different 
States,  and  very  little  further  effort  was  made  to  carry  on  the  con- 
test. Such,  however,  was  not  the  opinion  of  Congress,  which  mani- 
fested much  solicitude  on  the  subject.  Fearing  that  the  general 
apathy  would  encourage  Great  Britain  to  recommence  the  contest, 
they  delegated  certain  members  of  their  body  to  make  a  proper 
representation  of  the  public  danger  to  the  respective  States.  To 
this  duty  John  Rutledge  was  assigned,  on  the  22d  of  May,  1182, 
and  in  conjunction  with  George  Clymer,  he  was  instructed  "  to 
make  such  representations  to  the  several  States  southward  of  Phila- 
delphia, as  were  best  adapted  to  their  respective  circumstances  and 
the  present  situations  of  public  affairs,  and  as  might  induce  them  to 
carry  the  requisitions  of  Congress  into  effect  with  the  greatest 
despatch."  Under  these  instructions,  it  seems,  the  delegates  were 
permitted  to  address  the  Virginia  Assembly.  The  duty  of  course 
devolved  upon  Rutledge,  and,  to  use  again  the  language  of  Dr. 
Ramsay,  he  "  drew  such  a  picture  of  the  United  States,  and  of  the 
danger  to  which  they  were  exposed  by  the  backwardness  of  the 
particular  States  to  comply  with  the  requisitions  of  Congress,  as 
produced  a  very  happy  effect.  The  addresser  acquitted  himself  with 
so  much  ability,  that  the  Virginians,  who,  not  without  reason,  are 
proud  of  their  statesmen  and  orators,  began  to  doubt  whether  their 
10 


146  LIVES  OF  THE  CHIEF-JUSTICES. 

Patrick  Henry  or  the  South  Carolina  Rutledge  was  the  most 
accomplished  public  speaker."  This  speech,  so  highly  eulogized, 
like  almost  every  other  public  effort  of  its  author,  has  been  lost.  It 
seems  to  have  been  premeditated,  for  Mr.  Rutledge,  in  alluding  to 
some  fact  in  regard  to  it,  during  the  session,  remarked  that  it  was 
delivered  from  "  notes,"  which  he  had  prepared  for  the  occasion,  but 
that  he  had  destroyed  these  notes  immediately  afterwards,  as  was 
always  his  custom. 

Rutledge  and  Clymer  set  out  on  this  mission  somewhere  about  the 
1st  June.  It  is  probable  that  they  did  not  go  further  south  than 
"Virginia,  or  perhaps  North  Carolina.  Their  instructions  excused 
them  from  visiting  the  States  of  South  Carolina  and  Georgia,  unless 
they  might  "  deem  the  public  exigencies  required."  But  previous  to 
leaving  Philadelphia  they  were  directed  to  make  representations  to 
the  State  of  Pennsylvania,  which  no  doubt  was  done.  What  was 
the  success  of  this  mission  we  believe  remains  unknown.  The  dele- 
gates were  back  again  in  their  seats,  June  27th,  and  on  that  day  a 
brief  entry  appears  in  the  Journal,  thus :  "  Mr.  Rutledge  and  Mr. 
Clymer  having  returned,  made  a  report  of  their  proceedings."  No 
action  seems  to  have  been  taken  upon  it.  The  important  case  of  the 
State  of  Pennsylvania  against  the  State  of  Connecticut,  was  then 
occupying  the  attention  of  Congress.  Mr.  Rutledge  appeared  in 
his  seat  in  time  to  take  a  part  in  the  deliberation  of  this  question, 
and  to  discountenance  by  his  vote  the  principle  that  the  representa- 
tives of  either  State  should  be  allowed  to  sit'  during  the  argument 
and  decision  of  the  case.* 

It  was  in  this  Congress  that  Rutledge  first  met  Oliver  Ellsworth, 
then  delegate  from  the  State  of  Connecticut.  Here,  too,  for  the 
first  time,  he  met  another  gentleman,  who  subsequently  became  still 
more  celebrated — James  Madison  of  Virginia.  Hamilton  of  New 
York,  was  also  a  member  of  this  Congress,  and  Wilson  of  Pennsyl- 
vania. Besides  these  gentlemen,  he  found  here  three  or  four  mem- 
bers of  the  old  Congress,  which  published  the  Declaration  of  Inde- 
pendence ;  namely,  Dyer  of  Connecticut,  Clark  of  New  Jersey, 
Floyd  of  New  York,  and  Clymer  of  Pennsylvania.  The  renewal 

*  This  case  was  subsequently  referred  to  a  commission  of  judges  appointed  by 
Congress,  on  which  Rutledge  was  named,  but  he  declined  serving. 


%  JOHN  RUTLEDGE.  14.7 

of  friendly  acquaintance  and  intercourse  with  men  like  these,  must 
have  been  highly  gratifying  to  Gov.  Kutledge.  They  had  labored 
together  at  the  commencement  of  the  struggle,  and  now,  at  its  close, 
found  themselves  again  united  in  the  common  cause.  They  could 
look  back  with  a  calm  and  serene  satisfaction  over  the  fearful  strug- 
gles and  perils  of  the  past,  for  the  day  was  at  length  breaking,  and 
the  distant  port  might  be  seen,  far  off,  through  the  angry  clouds  and 
over  the  raging  sea. 

But  the  danger  was  not  yet  passed.  The  port  was  not  yet 
gained.  Every  nerve  must  be  strained,  every  rag  of  canvas  set, 
every  man  fit  for  duty  summoned  to  the  pumps,  to  keep  the  disabled 
and  half-wrecked  vessel  afloat  until  she  could  reach  the  harbor  of 
safety.  Dropping  the  figure,  it  is  sufficient  to  remark  here  that  the 
confederacy  rarely  passed  through  a  more  critical  period  than  during 
this  session  of  1782  and  1783.  It  is  true,  actual  hostilities  had  ceased 
with  the  capture  of  Cornwallis,  but  the  treaty  of  peace  was  not  con- 
cluded till  long  afterward.  Every  thing  was  confusion,  doubt  and 
discouragement.  The  confederacy  was  utterly  bankrupt,  and  its 
credit  annihilated.  The  public  creditors  were  unpaid  and  clamorous. 
The  army,  so  long  in  arrearof  pay,  almost  in  a  state  of  open  mutiny; — 
and  that  able  and  indefatigable  financier,  Ilobert  Morris,  whose 
genius  in  the  darkest  days  of  the  revolution  had  from  nothing  created 
resources  to  supply  a  bankrupt  treasury  and  an  empty  army  chest, 
was  now,  in  despair,  about  to  resign  the  superintendence  of  what  was 
called  the  finances. 

This  gloomy  position  of  affairs  served  to  give  a  more  than  ordi- 
nary degree  of  importance  and  interest  to  the  deliberations  of  this 
Congress  ;  and  when  Rutledge  took  his  seat,  he  found  staring  him 
and  his  associates  full  in  the  face,  this  great  and  momentous  ques- 
tion— a  question  overshadowing  all  others — one  which  must  be  met 
and  could  not  be  avoided — the  question  of  the  PUBLIC  CREDIT. 

In  the  deliberations  upon  this  subject,  Mr.  Rutledge,  in  conjunc- 
tion with  Madison  and  Hamilton,  acted  a  very  prominent  and  influ- 
ential part ;  and  although  his  views  differed  from  those  of  the  two 
gentlemen  last  mentioned  in  many  respects,  yet  he  finally  concurred 
in  the  general  plan  agreed  upon  as  a  compromise,  and  submitted  by 


148  LIVES  OF  THE  CHIEF-JUSTICES. 

Congress  to  the  States.     A  very  brief  statement  will  serve  to  explain 
his  position  and  views  on  this  important  subject. 

The  articles  of  the  confederation  provided  that  the  general  treas- 
ury should  be  supplied  "  by  the  several  States  in  proportion  to  the 
value  of  all  land  within  each  State,"  &c.  ;  but  the  States  had  not 
complied  with  the  requisitions,  and  it  had  been,  as  we  have  seen,  an 
object  of  Rutledge's  mission  to  the  South,  to  induce  the  States  to 
carry  out  the  requisitions  of  Congress.  It  had  been  found  trouble- 
some, also,  if  not  impossible  to  settle  the  proportion  of  contribution 
of  each  State  in  this  scale  of  land  valuation  ;  and  the  whole  matter 
had  occasioned  much  warm  debate  and  anxious  deliberation  in  Con- 
gress. The  subject  of  the  land  valuation  was  now  referred  to  a 
grand  committee  of  one  from  each  State,  of  which  Rutledge  was  a 
member.  While  the  majority  of  the  committee  were  convinced  of 
the  utter  impracticability  of  retaining  this  scale  of  contribution,  Mr. 
Rutledge  seems  to  have  favored  it,  and  even  to  have  sustained  it 
with  some  degree  of  pertinacity,  until  finally  overruled  by  numbers. 
The  utter  hopelessness  of  affairs,  and  the  necessity  of  some  step  to 
avert  the  dissolution  of  the  confederacy,  is  evident  from  some  of  the 
proceedings  before  this  "grand  committee."  Mr.  Peters  proposed 
the  almost  desperate  expedient  of  making  "  further  applications  for 
loans  in  Europe,"  remarking  that  money  "  must,  if  possible,  be  pro- 
cured for  the  army."  Mr.  Madison  seconded  it,  adding  that  "it 
was  expedient  to  make  the  trial,  because,  if  it  failed,  our  situation 
could  not  be  made  worse."  A  deputation  from  the  army  appeared 
before  the  committee,  who  communicated  the  startling  fact  that 
unless  some  provision  was  speedily  made  there  was  reason  to  dread 
that  a  mutiny  would  ensue  ;  and  General  McDougal,  one  of  the  de- 
puties, remarked  that  "  the  army  were  verging  to  that  state  which, 
we  are  told,  will  make  a  wise  man  mad."*  The  deliberations  of  the 
committee  seem  to  have  resulted  in  very  little  beyond  the  appoint- 
ment of  a  sub-committee,  consisting  of  Hamilton,  Madison  and  Rut- 
ledge,  to  report  arrangements.  These  various  conferences  and  dis- 
cussions were  continued  from  time  to  time  with  no  definite  result. 
On  the  27th  January,  1783,  on  Rutledge's  motion,  Congress  went 
into  committee  of  the  whole  to  consider  the  most  effectual  means  of 
*  Madison  Papers,  Vol.  I.  pp.  256,  257. 


JOHN  RUTLEDGE.  149 

restoring  the  public  credit.  After  a  long  and  animated  debate,  and 
a  variety  of  propositions  had  been  suggested,  Rutledge  moved  a 
resolution  recommending  to  the  several  States  to  lay  and  collect  a 
duty  of  five  per  cent,  ad  valorem  on  all  foreign  goods,  and  a  like 
duty.on  prizes  and  prize  goods  condemned ;  such  revenue  to  be  ap- 
plied to  the  payment  of  the  foreign  debt,  the  arrears  of  the  army, 
and  the  future  support  of  the  war,  and  no  other  purpose  whatever  ; 
and  that  the  said  duties  so  paid  by  any  State  into  the  treasury  be 
passed  to  the  credit  of  such  State  on  account  of  its  quota  of  contribution. 
This  was  something  definite  and  positive  ;  and  if  not  the  basis,  was 
at  least  suggestive  of  the  plan  finally  agreed  to  for  restoring  the 
public  credit  by  obtaining  from  the  States  the  right  for.  Congress  to 
levy  and  collect  a  tariff  on  foreign  imports.  The  latter  part  of  the 
resolution  was  of  course  warmly  opposed,  and  finally  voted  down. 
The  remaining  part  of  the  resolution,  with  some  modifications  and 
additions,  was,  after  a  debate  of  more  than  a  month,  reported  to 
Congress  by  a  select  committee  of  five,  to  whom  the  whole  matter 
had  been  referred.  The  report  was  made  on  the  6th  of  March. 
Mr.  Rutledge  was  a  member  of  this  important  committee.  The 
plan  agreed  upon  to  raise  funds  sufficient  to  restore  the  public  credit 
was  that  Congress  should  be  empowered  to  lay  an  ad  valorem  duty 
of  five  per  cent,  on  certain  foreign  goods,  as  originally  proposed  by 
Mr.  Rutledge — also  a  specific  duty  on  salt,  sugars,  teas,  wines,  &c.  ; 
the  avails  of  which  should  be  applied  to  no  other  purpose  than  the 
discharge  of  the  debts  contracted  by  the  United  States  for  the  sup- 
port of  the  war.  And  the  respective  States  were  also  recommended 
to  provide  some  "  substantial  and  effectual  revenue  "  to  supply  their 
proportion  of  $1,500,000  annually  for  twenty-five  years,  for  a  similar 
purpose.  This  plan  of  revenue,  with  some  slight  amendments,  passed 
on  the  18th  of  April,  1183,  with  the  unanimous  concurrence  of  all 
the  States  except  Rhode  Island,  and  the  vote  of  Mr.  Hamilton  of 
New  York,  who  was  indissolubly  wedded  to  a  plan  of  his  own,  which 
he  supposed  more  perfect. 

As  respects  the  proportion  in  which  the  States  were  to  contribute, 
a  very  important  amendment  was  proposed  to  the  articles  of  confed- 
eration. The  land  valuation,  which  we  have  seen  Mr.  Rutledge 
strongly  favored,  was  abandoned,  and  population  adopted  as  the 


150  LIVES  OF  THE  CHIEF-JUSTICES. 

basis  of  contribution.  This  amendment  is  not  the  least  interesting 
part  of  this  important  act  of  legislation,  inasmuch  as  it  exhibits  the 
origin  of  that  liberal  compromise  between  the  North  and  South  in 
regard  to  population  and  representation,  which  was  subsequently 
embodied  in  the  federal  Constitution.  Instead  of  the  land  valuation 
as  the  basis  of  contribution,  the  amendment  proposed  that  the 
charges  which  had  been  incurred  for  the  common  defence  should  be 
defrayed  out  of  a  common  treasury,  supplied  by  the  several  states 
"  in  proportion  to  the  whole  number  of  white  and  other  free  citizens 
and  inhabitants,  of  every  age,  sex  and  condition,  including  those 
bound  to  servitude  for  a  term  of  years,  and  three-fifths  of  all  other 
persons  not  comprehended  in  the  foregoing  description,  except  In- 
dians not  paying  taxes  in  each  State."* 

*  The  history  of  this  amendment  is  somewhat  curious.  The  original  report 
of  the  committee  on  the  subject  of  revenue,  made  on  the  9th  of  March,  1783,  pro- 
posed that  contributions  from  the  States,  instead  of  being  in  proportion  to  the 
value  of  the  land,  should  be  in  proportion  to  the  whole  number  of  inhabitants  of 
every  age,  sex  or  condition,  except  Indians.  This  of  course  was  opposed  by  the 
Southern  States,  and  the  compromise  of  three-fifths  finally  agreed  to.  In  the  de- 
bate on  this  subject,  March  27th  and  28th,  Mr.  Wilson  of  Pennsylvania  stated 
that  the  ratio  of  land  valuation,  instead  of  population,  had  been  agreed  to  in  the 
articles  of  confederation,  because  of  the  impossibility  of  compromising  the  ideas 
of  the  eastern  and  southern  States  as  to  the  value  of  slaves  compared  with  the 
whites.  Mr.  Clark  of  New  Jersey,  who  had  been  present  at  that  time,  stated 
that  the  southern  States  would  have  agreed  to  numbers  in  preference  to  the  value 
of  land,  if  half  then"  slaves  only  should  be  included  ;  but  that  the  eastern  States 
would  not  agree  in  the  proposition. 

The  clause  having  been  recommitted,  the  next  morning  after  this  discussion 
the  committee  reported  that  two  blacks  be  rated  as  one  freeman.  The  report 
being  read,  Mr.  Wolcott  was  for  rating  them  as  four  to  three.  Mr.  Carroll  as 
four  to  one.  Mr.  Higginsou,  Mr.  Holton  and  Mr.  Osgood.  as  four  to  three.  Mr. 
Rutledge  said,  for  the  sake  of  the  object,  he  would  agree  to  rate  slaves  as  two  to 
one,  but  he  sincerely  thought  three  to  one  would  be  a  juster  proportion.  A  ques- 
tion for  rating  them  as  three  to  two  was  then  put  and  lost,  and  the  paragraph  was 
thereupon  postponed,  it  appearing  to  be  the  general  opinion,  says  Mr.  Madison  in 
his  minutes,  that  no  compromise  would  be  agreed  to.  Subsequently  Mr.  Madison 
remarked,  that  in  order  to  give  a  proof  of  the  sincerity  of  his  professions  of  libe- 
rality, he  would  propose  that  slaves  be  rated  as  five  to  three.  Mr.  Rutledge  se- 
conded the  motion.  Mr.  Wilson  said  he  wculd  sacrifice  his  opinion  on  this  com- 
promise, and  the  question  for  five  to  three  passed  in  the  affirmative  by  a  vote  of 
all  the  States  except  Rhode  Island  and  Connecticut,  and  Massachusetts  divided. 

Madison  Papers,  Vol.  I.  p.  421-44 


JOHN  RUTLEDGE.  151 

Notwithstanding  Rutledge's  partiality  to  the  land  valuation,  we 
find  him,  on  this  occasion,  actuated  by  those  comprehensive  and  states- 
manlike views  of  policy,  and  that  liberal  spirit  of  concession  which 
marked  all  his  actions,  assenting  to  the  proposition  as  thus  agreed 
npon,  and  cordially  sustaining  the  act  as  matured  by  the  committee. 
I  have  said  that  it  was  a  mutual  concession  and  a  compromise,  and 
the  -original  of  that  other  compromise  which  in  almost  identical  lan- 
guage is  found  embodied  in  the  federal  Constitution.  The  committee 
appointed  to  prepare  an  address  to  the  States  to  accompany  the  act, 
consisting  of  Madison,  Hamilton,  and  Ellsworth,  so  also  viewed  it, 
as  appears  by  the  following  passage  in  their  address  :  "  The  only 
material  difficulty  which  attended  it  in  the  deliberations,  of  Congress 
was  to  fix  the  proper  difference  between  the  labor  and  industry  of 
free  inhabitants,  and  of  all  other  inhabitants.  The  ratio  ultimately 
agreed  on  was  the  effect  of  mutual  concessions ;  and  if  it  should  be 
supposed  not  to  correspond  precisely  with  the  fact,  no  doubt  ought 
to  be  entertained  that  an  equal  spirit  of  accommodation  among  the 
several  legislatures,  will  prevail  against  little  inequalities  which  may 
be  calculated  on  one  side  or  the  other."  Thus  we  see  at  this  early 
period  the  representatives  of  the  North  uniting  almost  unanimously 
with  the  representatives  of  the  South,  in  a  spirit  of  "  mutual  con- 
cession," and  with  the  most  elevated,  liberal,  and  patriotic  views, 
agreeing  upon  a  rule  of  contribution  between  the  different  States 
founded  upon  the  ratio  of  population,  which  was  subsequently  adopt- 
ed into  the  federal  Constitution  as  the  basis  of  representation. 

During  this  session  of  Congress,  the  treaty  of  peace  with  Great 
Britain  was  communicated  to  the  House.  The  conduct  of  the  com- 
missioners in  violating,  as  it  was  alleged,  their  instructions,  was 
severely  criticised,  particularly  by  Mr.  Mercer,  a  member  from  Vir- 
ginia, who  declared  that  he  "  felt  inexpressible  indignation  at  their 
meanly  stooping,  as  it  were,  to  lick  tte  dust  from  the  feet  of  a  na- 
tion whose  hands  were  still  dyed  with  the  blood  of  their  fellow 
citizens."  Rutledge  stoutly  defended  the  ministers,  and  maintained 
that  the  separate  article,  which  was  especially  complained  of,  did 
not  concern  France,  and  therefore  there  was  no  necessity  for  com- 
municating it  to  the  French  minister.  The  debate  was  warm  and 
animated,  and  was  renewed  from  day  to  day  for  several  days.  On 


152  LIVES  OP  THE  CHIEF-JUSTICES. 

a  subsequent  occasion  Rutledge  assumed  bolder  grounds.  He  in- 
sisted that  the  ministers  had  done  right,  and  had  maintained  the 
honor  of  the  United  States  after  Congress  had  given  it  up — placing 
their  justification  upon  a  principle  which  no  other  man  on  the  floor, 
perhaps,  would  have  had  the  courage  and  independence  to  avow, 
namely  that  instructions  ought  to  be  regarded  only  when  the  public 
good  requires  it.  As  for  himself,  he  remarked,  he  would  never  be 
bound  by  them  when  he  thought  them  improper.* 

Mr.  Rutledge  shared  very  largely  and  efficiently  in  all  the  busi- 
ness of  this  Congress.  He  was  a  member  of  nearly  every  important 
committee,  and  his  name  appears  frequently  with  those  of  Hamilton, 
Madison,  or  Ellsworth,  on  the  same  committees.  The  journals  show 
also  that  scarcely  any  question  was  decided,  upon  which  his  vote  is 
not  recorded.  He  seems  to  have  served  in  this  Congress  until  about 
the  middle  of  June,  1183,  when  Mr.  Jacob  Read  having  appeared 
as  a  delegate  from  South  Carolina,  he  returned  home.  A  few  days 
after  this  period,  Congress  was  surrounded  and  threatened  by  the 
mutinous  soldiers  from  Lancaster,  and  the  authorities  of  Philadel- 
phia being  unable  to  protect  that  body,  it  was  abruptly  adjourned, 
to  meet  again  at  Trenton,  hi  New  Jersey. 

Rutledge  was  elected  Judge  of  the  South  Carolina  Court  of 
Chancery  in  the  year  1784.  His  associates  were  John  Mathewsf 
and  Richard  Hutson.  This  was  under  the  new  organization  of  the 
Court.  Indeed,  up  to  the  year  1784,  there  had  been  no  regular 
Courts  of  Equity  in  South  Carolina.  They  had  been  originally  held 
by  the  council  of  proprietors,  and  subsequently  by  the  representa- 
tives of  the  royal  authority.  It  is  somewhat  remarkable,  that  on 
the  formation  of  the  new  Constitution  in  1776,  this  feature  of  mon- 

*  Madison  Papers,  Vol.  II.  p.  410. 

t  This  true  patriot  and  upright  judge  was  one  of  the  earliest  and  most  devoted 
friends  of  the  liberty  of  his  native  State  and  Country.  He  served  with  distinction 
in  the  Continental  Congress,  and  was  a  member  while  the  subject  was  contem- 
plated, if  not  agitated,  of  purchasing  peace  with  Great  Britain  by  the  sacrifice  of 
the  Carolinas  and  Georgia.  This  intrigue  was  strenuously  and  effectually  opposed 
by  Mr.  Mathews,  supported  by  his  colleagues,  Mr.  Bee  and  Col.  Eveleigh. 

At  the  expiration  of  Rutledge's  term  as  Governor,  Mr.  Mathews  was  elected  to 
that  office,  and  served  with  great  credit  to  himself  and  profit  to  the  State.  His 
selection  as  Chancellor  was  a  proper  and  deserved  compliment  to  exalted  worth 
and  disinterested  services. 


JOHN  RUTLEDGR  ^53 

archy  was  preserved.  By  that  instrument  the  Lieutenant-Governor 
and  Privy  Council  were  vested  with  equity  jurisdiction.  This  state 
of  things  continued  until  the  year  1184,  when,  by  the  passage  of  a 
bill  reorganizing  Courts  of  Equity,  jurisdiction  in  all  cases  in  equity 
was  ( vested  in  a  Chancellor  and  two  associates.  This  bill  was  drawn 
by  Rutledge.  It  provided  that  each  of  the  three  judges,  or  Chan- 
cellors, should  hold  a  court  for  the  hearing  of  causes  in  equity,  with 
the  right  to  any  party  to  appeal  from  a  decree  to  the  three  Chan- 
cellors in  bane.  This  constitution  of  the  Courts  of  Equity  contin- 
ued until  the  year  1808,  when  two  more  judges  were  added  to  the 
Court,  giving  the  right  of  appeal  from  a  single  judge  to  a  full  bench 
of  five,  whose  decision  was  final. 

The  first  term  of  the  Court  was  held  at  Charleston,  on  the  14th 
day  of  June,  1784.  All  three  of  the  judges  were  present.  Many 
petitions  were  presented,  and  some  business  transacted,  but  no 
causes  were  heard,  and  no  decisions  made  which  involved  any  prin- 
ciple of  importance.  At  the  next  term,  held  in  September,  many 
important  cases  were  brought  on  for  argument.  At  that  time,  how- 
ever, it  appears  that  decretal  orders  were  made  without  stating  the 
reasons  of  the  Court  in  writing,  or  the  grounds  of  the  decision,  so 
that  very  little  information  can  be  drawn  from  a  number  of  the  ear- 
lier cases.*  The  proceedings  seem  to  have  been  conducted  very 
much  in  the  ordinary  form,  and  upon  similar  principles  with  the 
English  Courts  of  Equity.  From  the  outset,  the  business  of  the 
Court  was  transacted  with  the  utmost  dignity  and  decorum,  and 
participated  in  by  the  ablest  members  of  the  South  Carolina  bar. 
A  very  remarkable  case,  which  created  much  interest,  both  011 
account  of  the  high  character  of  the  parties,  and  the  novelty  of  the 
questions  presented,  was  brought  to  argument  before  a  full  bench,  at 
the  March  term  1185.  About  the  year  1166,  Ralph  and  John 
Izard,  two  young  men,  heads  of  collateral  branches,  sprung  from  a 
common  ancestor,  who  early  settled  the  country,  entered  into  an 
agreement  that  in  case  either  of  them  died  without  issue,  he  should 
bequeath  the  other  the  sum  of  five  thousand  pounds  sterling,  for  Ihe 
purpose  of  keeping  up  the  name  and  consequence  of  the  family. 
John  Izard  died  without  issue,  and  made  no  such  provision  in  his 
*  1  Desaussure  B  Ch.  Rep.  107. 


154:  LIVES   OF   THE   CHIEF-JUSTICES. 

will,  but  left  the  bulk  of  his  property  to  his  sister  Mary,  the  wife  of 
Arthur  Middleton.  Thereupon,  Ralph  Izard  *  filed  a  bill  against 
Arthur  Middleton  as  executor  of  John  Izard,  praying  a  perform- 
ance of  the  agreement,  and  the  payment  of  the  five  thousand  pounds. 

This  novel  case  was  argued  with  consummate  ability  on  both 
sides,  and  by  the  most  eminent  lawyers  of  the  State.  William 
Draytou  and  Judge  Bee,  Edward  Rutledge  and  Charles  Cotesworth 
Pinckney,  were  the  counsel  engaged  upon  it,  but  neither  the  argu- 
ment nor  any  portion  of  the  evidence  has  been  preserved.  Chancel- 
lor Mathews  pronounced  the  unanimous  opinion  of  the  Court,  dis- 
missing the  bill,  partly  for  the  reason  that  such  a  promise  not  being 
reduced  to  writing  was  not  binding,  and  partly,  as  it  seems  from  a 
note  of  the  reporter,  because  the  alleged  agreement  to  make  mutual 
and  corresponding  wills  was  not  fully  made  out  by  sufficient  positive 
and  legal  proof,  f 

The  reported  cases,  in  the  decision  of  which  Rutledge  participated, 
are  mainly  collected  in  the  first  volume  of  Desaussure's  Chancery 
Reports  of  South  Carolina,  and  extend  only  through  about  eighty 
pages  of  the  volume.  I  do  not  find  any  written  opinion  or  decision 
by  Rutledge,  or  indeed,  of  any  of  the  other  judges,  with  the  excep- 
tion of  three  or  four  which  appear  to  have  been  taken  from  Chan- 
cellor Mathews'  notes.  Rutledge,  however,  seems  to  have  been 
present  on  the  bench,  and  to  have  participated  in  all  these  decisions 
up  to  the  year  1790,  except  during  the  period  of  his  absence  at  the 
Convention  in  Philadelphia.  The  questions  argued  before  him  were 
precisely  of  the  same  nature  as  those  which  usually  occupy  the 
attention  of  other  Courts  of  Equity — questions  of  fraud,  of  trust, 
of  the  rights  of  infants  and  married  women,  the  construction  of 
wills,  agreements,  and  other  written  instruments,  the  conveyance  and 
title  of  lands,  and  indeed  almost  every  other  question  involved  in 
that  extensive  system  of  equity  jurisprudence  which  had  grown  up 
under  the  English  Chancellors,  and  had  been  transferred  in  its  full 
maturity  to  the  colony  of  South  Carolina. 

*  This  gentleman  was  a  delegate  in  the  Continental  Congress,  with  Rutledge, ' 
in  1782-3.    The  defendant,  Mr.  Middleton,  was  also  a  member  of  the  dame  delega- 
tion iu  Congress. 

*  1  Desaussure's  Reports,  114. 


*          JOHN  RUTLEDGE.  155 

At  the  new  organization  of  the  Courts  of  law  and  equity,  in  the 
month  of  February,  1791,  Rutledge  was  elected  Chief-Justice  of  the 
Supreme  Court  of  Judicature  of  the  State,  thereby  vacating  his 
seat  on  the  Equity  bench.  His  associates  were  JEdanus  Burke,* 
John  F.  Grhnke,  Thomas  Waties,  and  Elihu  Hall  Bay,  the  accom- 
plished reporter  of  the  Court,  all  of  them  gentlemen  of  distinguish- 
ed legal  attainments,  and  of  the  very  highest  character  and  moral 
worth.  In  this  respect,  there  was  a  striking  contrast  between  the 
judiciary  under  the  State  government,  and  the  Colonial  bench  under 
the  appointment  of  the  crown.  When  Rutledge  was  at  the  bar, 
prior  to  the  revolution,  the  judges  were  mostly  foreigners,  holding 

*  Throughout  the  whole  of  the  Revolution,  says  Mr.  Garden,  Judge  Burke 
acted  a  very  conspicuous  part.  He  was  a  steady  and  inflexible  patriot  and  zealous 
supporter  of  the  laws.  The  people  had  not  an  advocate  more  ready  to  maintain 
their  just  rights,  nor  a  more  prompt  opponent  whenever  they  manifested  the 
slightest  disposition  to  licentiousness.  He  always  meant  well,  though  he  frequent- 
ly took  an  awkward  way  of  showing  it,  and  secured  confidence  by  his  unremitted 
endeavors  to  deserve  it. 

Mr.  Garden  relates  several  anecdotes  of  this  eccentric  gentleman,  some  of 
which  exhibit  a  keen  but  rough  and  unpolished  wit.  Sending  a  challenge  to  a 
person  who  had  grossly  insulted  him,  he  thus  expressed  himself:  "Sir,  I  must 
insist  upon  your  giving  me  immediate  satisfaction  for  having  so  far  imposed  on 
me  as  to  make  me  believe  for  a  single  moment  that  you  were  a  man  of  honor  or 
a  gentleman." 

In  those  primitive  days  when  Burke  first  came  to  the  bench,  society,  in  the 
back  settlements,  tolerated  the  practice  of  biting,  gouging  out  eyes,  &c.  Burke, 
while  travelling  his  circuits,  was  in  the  habit  of  carrying  pistols  of  extraordinary 
size  and  calibre.  Being  asked  the  reason,  he  replied :  "  As  the  best  specific  for 
the  preservation  of  my  eye-sight— -country  frolics  too  frequently  producing  blind- 
ness." 

On  the  day  before  his  death,  being  tapped  for  the  dropsy,  he  asked  his  physi- 
cian—" Well,  Irvine,  what  am  I  to  expect ;  is  the  decree  life,  or  death  ?"  «•  Life, 
my  good  fellow,"  said  Irvine ;  "  you  are  an  Irishman,  and  will  yet  last  a  long 

time."    "  Then,  by ,"  said  Burke,  "  I  shall  be  the  first  thing  that  ever  lasted 

long  in  this  house,  after  being  once  put  on  tap." 

Burke  was  the  writer,  who,  under  the  signature  of  Cassias,  attacked  the  pre- 
scriptive act  of  the  Jacksonborough  Assembly,  and  accused  Rutledge  of  being  its 
author.  He  was  a  strenuous  opponent  of  the  Federal  Constitution,  but  subse- 
quently abandoned  his  opposition  and  gave  it  his  full  support  In  1790  he  was 
appointed  to  the  Chancery  bench,  on  filling  up  the  vacancies  occasioned  by  the 
death  of  Chancellor  Hutson  and  the  resignation  of  Chancellor  Mathews. 


156  LIVES  OF  THE  CHIEF-JUSTICES. 

their  commissions  from  the  King.  At  the  opening  of  the  Revolu- 
tion, William  Henry  Drayton  was  the  only  native  South  Carolinian 
on  the  bench,  and  he,  it  seems,  was  there  only  by  the  temporary 
appointment  of  the  Lieutenant-Governor,  and  was  actually  super- 
seded about  the  commencement  of  the  troubles  by  an  Englishman, 
named  Gregory.*  Prior  to  1769  the  Judges  received  no  fee  or 
reward,  and  the  character  of  the  bench,  composed  as  it  was  mainly 
of  gentlemen  of  good  fortunes  and  estates,  was  comparatively  good. 
But  subsequently  to  that  period,  and  up  to  the  time  of  the  Revolu- 
tion, with  some  few  exceptions,  the  Judges  were  utterly  unfitted  for 
the  station,  either  in  character,  talent,  or  learning.  It  is  stated  of 
Chief-Justice  Shinner,  that  he  never  opened  a  law  book  until 
he  was  actually  on  his  passage  to  America.  Mr.  Garden,  in  his 
Anecdotes,  relates  an  occurrence  which  gives  us  some  idea  of  the 
qualifications  and  characters  of  these  Engh'sh  judges.  One  of 
them,  Mr.  Justice  Futerel,  having  sacrificed  too  freely  to  Bacchus, 
at  a  dancing  assembly,  lay  extended  on  a  bench,  confused  with 
liquor,  when,  observing  a  gentleman  pulling  off  his  coat  for  the  pur- 
pose of  changing  a  waistcoat  that  had  been  accidentally  soiled,  he 
leaped  up,  and  putting  himself  in  a  boxing  attitude,  exclaimed, 
"  Oh,  damn  you,  if  you  are  for  that  sport,  I'm  at  home — come  on." 

The  character  of  the  South  Carolina  judiciary  was  redeemed  when 
her  native  sons  were  called  to  the  bench.  That  pure  and  inflexible 
patriot  and  able  jurist,  William  Henry  Drayton,  as  we  have  seen, 
was  the  first  Chief-Justice  under  the  revolutionary  government.  In 
the  discharge  of  his  duties,  justice  was  administered  with  "discern- 
ing eyes,"  as  well  as  "  clean  hands."  Nor  did  the  judicial  ermine 
lose  in  the  slightest  degree  its  purity  when,  falling  from  him  and 
others  who  had  worn  it  after  him,  without  spot  or  blemish,  it  rested 
upon  the  shoulders  of  John  Rutledge. 

The  first  case  adjudicated  by  Judge  Rutledge  and  his  associates, 
after  his  appointment  as  Chief-Justice  of  the  law  courts,  was  in  the 
Common  Pleas,  at  the  February  session,  1791.  It  was  a  prosecution 
for  forgery  against  a  man  named  Welch,  indicted  under  the  assumed 
name  of  Washington.  The  punishment  of  the  offence  by  the  laws 
of  South  Carolina,  was  death,  and  the  case,  apart  from  the  nature 

*  Dray  ton's  Memoirs,  p.  151. 


JOHN  KUTLEDGE. 


157 


of  the  legal  questions  involyed,  attracted  very  great  interest.  The 
prisoner,  after  a  long  and  deliberate  trial,  had  been  found  guilty  ; 
whereupon  his  counsel  gave  notice  to  the  Attorney-General  that 
they  intended  to  move  in  arrest  of  judgment.  On  the  9th  March, 
1791,  the  motion  was  brought  on  before  the  Chief-Justice,  Mr.  Jus- 
tice Bay  and  Mr.  Justice  Grimke,  the  two  former  of  whom  on  that 
day,  for  the  first  time,  took  their  seats  upon  the  bench.  The  guilt 
of  the  prisoner  had  been  established  by  the  verdict,  and  the  ques- 
tions, of  course,  were  purely  technical  ones,  turning  mainly  upon  the 
sufficiency  of  the  indictment.  An  art.lysis  of  the  very  able  argu- 
ment in  this  case  has  been  preserved  in  the  report,*  but  involving,  as 
it  did,  questions  of  law  merely,  and  as  such  interesting  to  the  legal 
profession  alone,  I  shall  not  undertake  to  follow  or  review  it  in  this 
place.  On  the  part  of  the  prisoner,  the  argument  was  conducted  by 
Messrs.  Holmes,  Lowndes  and  Hall.  It  being  a  capital  ease,  and 
very  great  public  expectations  having  been  raised,  and  no  gentle- 
man of  the  bar  being  willing  to  volunteer  against  the  prisoner,  the 
Attorney- General,  Alexander  Moultrie,  applied  to  the  Governor  to 
have  counsel  assigned,  whereupon  his  excellency  appointed  Col. 
Head,  who,  with  the  Attorney-General,  argued  the  case  on  behalf 
of  the  people.  The  Chief-Justice  delivered  the  opinion  of  the 
Court,  and  it  is  on  the  whole,  perhaps  the  best  specimen  we  have  of 
his  legal  acumen  and  his  mode  of  treating  a  purely  technical  ques- 
tion. He  meets  and  examines  each  point  taken  by  the  counsel  for 
the  defence  with  the  utmost  care  and  attention,  and  withal  with 
lawyerlike  precision  and  accuracy,  and  shows,  by  a  chain  of  unan- 
swerable reasoning,  and  of  the  clearest  illustration,  that  the  objec- 
tions raised  are  untenable.  The  opinion,  in  which  the  rest  of  the 
Court  concurred,  is  amply  fortified  by  references  to  the  sources  of 
the  common  law,  and  a  copious  analysis  and  comparison  of  adjudged 
cases.  It  was  more  full  and  circumstantial  than  was  usual  with  the 
Chief-Justice,  but  being,  as  he  remarked,  a  case  of  great  importance 
to  the  prisoner,  and  the  public  at  large,  he  considered  it  proper  "  to 
state  thus  fully  the  reasons  upon  which  our  decision  is  founded."  It  is 
scarcely  necessary  to  add,  that  the  motion  was  overruled,  and  the 
prisoner  adjudged  to  undergo  the  full  penalty  of  the  law.  The  Chief- 
*  1  Bay's  South  Carolina  Reports,  120. 


158  LIVES  OF  THE  CHIEF-JUSTICES. 

Justice  passed  sentence  of  death  upon  him  in  a  very  "  affecting  ad- 
dress," as  the  reporter  remarks,  recommending  him  in  "  a  very 
pathetic  manner  to  employ  that  little  interval  of  life  which  remained, 
in  making  his  peace  with  that  God  whose  law  he  had  offended." 

I  shall  not  undertake  to  follow  the  course  of  Judge  Rutledge 
through  the  four  years  of  his  judicial  service  in  the  law  courts  of 
South  Carolina.  His  demeanor  was  dignified,  and  his  manner, 
though  somewhat  distant  and  haughty,  was  courteous  to  the  bar  as 
well  as  to  his  brethren  of  the  bench.  His  judgments  were  strictly 
,  impartial,  and  most  of  them,  so  far  as  we  can  now  form  an  opinion 
from  such  of  the  cases  as  were  decided  in  bane  and  have  been 
reported,  were  in  accordance  with  the  principles  of  the  common  law. 
Such,  for  example,  was  the  judgment  in  one  of  the  last  cases  dis- 
cussed before  him — the  case  of  the  creditors  of  Scott  vs.  Scott — 
decided  in  the  spring  of  1795,  and  argued  with  very  great  learning 
and  ingenuity  by  Col.  Read,  on  the  one  side,  and  Charles  Cotes- 
worth  Pinckney  on  the  other.  The  question  in  the  case  was  whether 
commissioners  in  a  writ  of  dower  could  assign  a  widow  the  whole  of 
one  of  several  tracts,  or  whether  they  were  not  bound  to  give  her 
one-third  of  each  separate  tract.  Rutledge  delivered  the  opinion  of 
the  Court  in  this  case,  and  by  a  very  careful  examination  of  old  au- 
thorities and  the  strictest  legal  deductions,  arrived  at  the  conclusion, 
which  was  concurred  in  by  his  associates,  that  the  assignment  of 
dower  must  be  by  metes  and  bounds,  and  of  each  tract  of  land  in 
severalty. 

Most  of  the  reported  cases  decided  by  the  courts  during  this  pe- 
riod involved  questions  of  this  nature — questions  of  common  law, 
the  decision  of  which  was  to  be  governed  by  established  legal  max- 
ims, and  the  principles  of  which  were  to  be  sought  in  the  common 
law  of  England  as  it  stood  at  that  tune.  Occasionally,  however, 
questions  of  a  more  novel  and  original  character  arose,  in  which  the 
court  was  left  without  the  light  of  established  principles,  and  the 
authority  of  ancient  precedents. 

Thus,  at  the  May  term,  1791,  in  the  case  of  Eden  vs.  Legare',* 
we  find  Rutledge  laying  down  the  rule,  that  calling  a  man  a  mulatto 
is  a  slander,  per  se,  and  actionable.  The  reason  assigned  is,  that  if 
*  1  Bay's  South  Carolina  Reports,  174. 


JOHN  RUTLEDGE.  159 

true,  "  the  party  would  be  deprived  of  all  civil  rights,  and  moreover 
would  be  liable  to  be  tried  in  all  cases  under  the  negro  act,  without 
the  privilege  of  a  trial  by  jury." 

The  bar,  as  well  as  the  bench,  at  this  period,  comprised  gentle- 
men of  unusual  ability  and  eminence  in  their  profession.  At  the 
head  of  these  stood  Charles  Cotesworth  Pinckney*  and  Edward 
Rutledge,  who  are  found  opposed  in  almost  every  case  of  importance 
argued  in  the  Superior  Courts.  The  latter  of  these  gentlemen  con- 
tinued his  brilliant  and  honorable  career  at  the  bar,  down  to  the 
period  of  his  election  as  chief-magistrate  of  the  State.  In  addition 
to  these  may  be  mentioned  the  names  of  those  eminent  and  able 
lawyers,  whose  talents  and  learning  illustrate  the  judicial  records  of 
South  Carolina — Read,  Pringle,  Desaussure,  Lowndes,  Moultrie, 
Harper  and  Holmes.  With  the  advantage  of  the  experience,  the 
learning  and  the  abilities  of  such  advocates  at  the  bar,  the  labors  of 

*  This  distinguished  gentleman  was  the  son  of  Charles  Pinckney,  who  twenty 
years  prior  to  the  Revolution  was  a  Judge  of  the  Colonial  Courts  in  South  Caro- 
lina. Resigning  his  seat  on  the  bench,  Judge  Pinckney  took  his  two  sons,  Charles 
Cotesworth  and  Thomas  Pinckney,  to  England,  for  the  purpose  of  completing 
their  education.  Returning  to  America,  and  being  admitted  to  the  bar,  Charles  C. 
Pinckney  entered  upon  the  practice  of  hrs  profession.  The  revolutionary  move- 
ments found  in  him  a  warm  and  decided  advocate.  He  was  chosen  captain  in  the 
first  South  Carolina  regiment,  and  was  afterwards  promoted  to  the  command  of 
it.  Subsequently  joining  General  Washington,  he  was  received  into  the  family 
of  the  Commander-in-chief  as  one  of  his  aids,  and  was  present  at  the  battles  of 
Brandywine  and  Germantown.  Returning  to  South  Carolina  on  the  second  inva- 
sion of  Sir  Henry  Clinton,  he  was  entrusted  with  the  command  of  Fort  Moultrie ; 
and  having  been  taken  prisoner  at  the  fall  of  Charleston,  was,  with  many  of  the 
most  distinguished  sons  of  South  Carolina,  sent  into  exile  at  St.  Augustine. 

As  an  enlightened  statesman  and  able  lawyer,  General  Pinckney  ranks  unques- 
tionably among  the  first  men  of  the  country.  He  was  an  influential  member  of 
the  Convention  which  framed  the  Federal  Constitution,  and  afterwards  of  the 
State  Convention  of  South  Carolina  which  ratified  it.  To  the  efforts  of  Pinckney 
and  Rutledge  may  be  attributed,  in  a  great  measure,  the  success  of  the  Constitu- 
tion in  the  State  of  South  Carolina.  Gen.  Pinckney  was  appointed,  with  Mar- 
shall and  Gerry,  to  negotiate  with  France  in  1798.  At  the  election  of  1800,  ho 
was  one  of  the  candidates  for  President  and  Vicc-President  of  the  United  States. 
By  consenting  to  unite  his  name  with  that  of  Jefferson,  he  would  probably  have 
secured  the  vote  of  his  State,  which  would  have  elected  him  to  one  of  these 
distinguished  stations.  As  it  turned  out,  however,  the  vote  of  South  Carolina 
was  given  to  Mr.  Burr,  wbo-thereupon  was  elected  Vice-President 


1(50  LIVES  OF  THE  CHIEF-JUSTICES. 

the  bench  were  rendered  far  less  arduous.  Every  important  ques- 
tion was  the  subject  of  full  and  accurate  discussion,  and  was 
ill  turn  subjected  to  the  most  rigid  and  severe  examination  by 
the  judges  ;  and  it  may  be  added  that  the  authority  of  these  earlier 
decisions  in  the  State  Courts  of  South  Carolina,  has  always  been 
received  and  treated  with  the  highest  respect. 

During  the  period  of  his  service  as  one  of  the  Chancellors  of  the 
State,  and  without  resigning  his  place  upon  the  bench,  Rutledge 
consented  to  serve  as  a  delegate  from  South  Carolina  in  the  Conven- 
tion which  framed  the  Constitution  of  the  United  States.  His  col- 
leagues were  Charles  Pinckney,  Charles  Cotesworth  Pinckney,  and 
Pierce  Butler.  The  Convention,  although  called  for  the  second 
Monday  in  May,  1781,  did  not  organize  until  the  25th  of  that  month. 
On  that  day,  a  majority  of  the  States  being  represented,  George 
Washington  was  unanimously  chosen  President  of  the  Convention, 
and  was  conducted  to  the  chair  by  Robert  Morris  and  John  Rut- 
ledge,*  when  having  delivered  his  brief  and  modest  introductory 
address,  the  business  of  the  Convention  commenced. 

It  is  impossible  to  look  over  the  list  of  the  members  comprising 
this  august  body,  without  being  deeply  impressed  with  its  exalted 
character,  its  great  dignity,  and  its  commanding  ability.  With  some 
notable  exceptions,  such  as  Jefferson  of  Virginia,  the  Livingstons, 
Clinton  and  Jay  of  New  York,  and  the  Adamses  of  Massachusetts, 
most  of  the  prominent  statesmen  and  civilians  of  that  day  were  mem- 
bers, f  Among  the  list  are  the  names  of  three  out  of  the  five  Asso- 
ciate-Justices of  the  Supreme  Court  originally  nominated  by  Wash- 
ington, namely,  Rutledge  of  South  Carolina,  Wilson  of  Pennsylva- 
nia, and  Blair  of  Virginia — the  first  Attorney-General  of  the  United 
States,  Edmund  Randolph,  and  the  third  Chief-Justice,  Oliver  Ells- 
worth. Besides  these  eminent  and  able  jurists,  the  American  bar 

*  Mr.  Rutledge  seconded  the  motion  of  Mr.  Morris,  nominating  Gen.  Washing- 
ton President  of  the  Convention.  He  expressed  the  hope  that  the  choice  would 
be  unanimous.  The  presence  of  General  "Washington,  he  observed,  forbade  any 
remarks  in  regard  to  him,  which  on  another  occasion  would  be  proper.  Wash- 
ington was  thereupon  unanimously  chosen,  by  ballot,  to  preside  over  the  Conven- 
tion. 

t  Some  of  them,  however,  never  attended,  among  whom  was  Patrick  Henry 
of  Virginia. 


JOHN  RUTLEDGE.  161 

was  represented  on  the  floor  of  that  Convention  by  such*  men  as 
Chancellor  Wythe  of  Yirginia,  the  Pinckneys  of  South  Carolina, 
Paterson  of  New  Jersey,  Luther  Martin  of  Maryland,  and  Jared 
Ingersoll  of  Pennsylvania. 

The.  general  proceedings  of  this  Convention,  forming  so  prominent 
a  part  of  the  history  of  the  country,  and  so  deeply  interesting  to 
every  American,  are  tolerably  familiar  to  the  public,  through  the 
journal  of  its  proceedings,  the  brief  minutes  of  Mr.  Yates,  and  the 
published  papers  of  Mr.  Madison.  It  is  to  be  regretted  that,  the 
Convention  having  sat  with  closed  doors,  no  extended  report  of  its 
proceedings  from  day  to  day  was  taken,  and  thus  so  few  of  these 
deeply  interesting  discussions  remain. 

It  appears  from  the  Journal,  as  well  as  from  other  sources,  that 
Mr.  Rutledge  was  not  only  an  active,  but  one  of  the  most  influential 
members  of  the  Convention,  and  that  many  of  his  views  were  adopted 
in  the  final  compromise  of  the  Constitution.  I  shall,  however,  allude 
to  the  proceedings  of  this  body,  only  so  far  as  may  be  necessary  to 
indicate  the  general  nature  of  Mr.  Rutledge's  services,  and  the  views 
which  he  entertained  and  advocated. 

Immediately  on  the  organization  of  the  Convention,  Edmund 
Randolph,  of  Virginia,  offered  a  set  of  resolutions  embodying  his 
idea  of  the  leading  principles  which  should  be  established  as  the 
basis  of  the  new  government.  He  accompanied  them  with  an  elab- 
orate speech,  in  which  he  admitted  that  they  were  not  intended  for 
a  Federal  Government,  but  meant  a  strong  consolidated  union,  ill 
which  the  idea  of  States  should  be  nearly  annihilated.  Upon  this 
point  the  main  and  formidable  struggle  in  the  Convention  subse- 
quently occurred,  namely,  as  between  a  Federal  Union  of  the  States 
and  a  Consolidated  Government.  Randolph's  plan  provided  for  a 
national  Legislature  to  consist  of  two  branches,  the  first  to  be 
elected  by  the  people  of  the  States  in  proportion  to  the  quota  of 
contribution,  or  the  number  of  free  inhabitants,  and  the  second  to 
be  elected  by  the  first  branch  out  of  persons  nominated  by  the  indi- 
vidual legislatures.  It  provided  also  for  a  national  Executive  with 
a  Council  of  Revision,  and  a  national  Judiciary. 

At  the  same  time  the  draft  of  a  plan  of  Government  was  submit" 
ted  by  Mr.  Charles  Pinckney  of  South  Carolina.  This  plan,  it  is 
11 


162  LIVES  OF  THE  CHIEF-JUSTICES. 

presumed,  had  received  the  approbation  of  Rutledge,  and  the  rest 
of  the  South  Carolina  delegation,  although  it  professed  to  express 
the  individual  views  of  Mr.  Pinckney  alone.  It  was  more  specific, 
and  went  more  into  detail  than  the  propositions  of  Mr.  Randolph, 
and  though  Mr.  Pinckney  declared  it  was  based  on  similar  prin- 
ciples, yet  there  were  some  essential  points  of  difference.  Thus  it 
defined  and  specified  the  powers  which  should  be  vested  in  the  new 
government — and  this  enumeration  of  powers  was  subsequently,  with 
some  additions  and  modifications,  grafted  upon  the  new  Constitu- 
tion. It  provided  also  for  the  election  of  an  executive  magistrate, 
with  the  title  of  President  of  the  United  States,  to  serve  for  a  term 
of  years,  and  be  reeligible,  and  contained  various  other  provisions 
which  the  Convention  subsequently  approved.  Like  the  Virginia 
plan,  however,  it  contemplated  the  election  of  a  Senate  by  the 
house  of  delegates,  the  senators  to  be  taken  from  among  the  citi- 
zens of  the  respective  States,  although  not  nominated  by  the  legis- 
latures thereof.  Each  State  was  to  be  represented  in  the  Senate  as 
well  as  in  the  popular  branch,  in  proportion  to  the  ratio  of  its  popu- 
lation. Upon  this  point,  that  is  to  say,  the  equality  of  representation 
in  the  national  legislature,  the  serious  struggle  in  the  Convention 
occurred,  the  large  States  insisting  upon  a  representation  in  both 
branches  according  to  population,  or  wealth,  or  both,  and  most  of 
the  smaller  States  contending  as  strenuously  for  an  equal  represent- 
ation on  the  part  of  the  States.  Upon  this  question  South  Carolina 
voted  with  the  larger  States. 

Previous  to  its  decision,  however,  the  question  as  to  the  mode 
of  election,  the  term  of  service,  &c.,  came  up.  On  the  7th  of  June, 
on  motion  of  Rutledge,  the  Convention  went  into  consideration  of 
the  mode  of  electing  the  second  branch  of  the  Legislature.  Mr. 
Dickinson  of  Delaware,  moved  that  they  be  chosen  by  the  legislatures 
of  the  States,  which  after  some  debate  was  carried  unanimously.  Two 
or  three  days  after,  the  question  came  up  as  to  the  mode  of  appointing 
the  first  branch  of  the  national  Legislature.  Roger  Sherman  was 
of  the  opinion  that  they  should  be  chosen  in  proportion  to  the  whole 
number  of  inhabitants  in  each  State.  Thereupon  Rutledge  moved 
as  an  amendment,  "  that  the  proportion  of  representation  ought  to 
be  according  to  and  in  proportion  to  the  contribution  of  each 


JOHN  RUTLEDGE.  Ig3 

State."  This  motion  was  subsequently  postponed,  and  one  by  Judge 
Wilson  adopted,  namely,  that  the  representation  of  each  State  ought 
to  be  from  the  number  of  its  free  inhabitants  and  three-fifths  of  all 
other  persons,  except  Indians  not  paying  taxes.  The  proposition 
prevailed  by  a  vote  of  nine  States  to  two — New  Jersey  and  Dela- 
ware voting  in  the  negative.*  In  regard  to  the  period  of  service  of 
the  members  of  the  first  branch,  Mr.  Sherman  moved  one  year, 
Mr.  Rutledge  two  years,  and  Mr.  Jenifer,  with  whom  Madison 
coincided,  three  years.  The  latter  motion  was  carried,  and  it  was 
so  contained  in  the  resolutions  subsequently  reported  to  the  House 
from  the  Committee  of  the  Whole. 

Immediately  on  the  determination  of  the  question  relative  to  the 
ratio  of  representation  in  the  popular  branch  of  the  national  Legis- 
lature, it  seems  from  the  Journal,  that  Mr.  Sherman,  seconded  by 
Mr.  Ellsworth,  moved  "  that  in  the  second  branch  of  the  national 
Legislature  each  State  have  a  vote."  The  motion  was  negatived  by 
a  vote  of  six  States  to  five.  Thereupon  Mr.  Wilson,  seconded  by 
Mr.  Hamilton,  moved  "that  the  right  of  suffrage  in  the  second 
branch  of  the  national  Legislature  ought  to  be  according  to  the 
rule  established  for  the  first."  This  was  adopted  by  precisely  the 
same  relative  vote.f  Thus,  upon  the  start,  the  advocates  of  a 
strictly  Federal  Government,  which  should  preserve  the  unity,  iden- 
tity and  influence  of  the  respective  States,  were,  overpowered,  and 
the  friends  of  a  consolidated  national  Government,  in  which,  to  use 
the  language  of  Mr.  Randolph,  "the  idea  of  States  should  be  nearly 
annihilated,"  carried  the  day.  In  this  manner  a  series  of  resolutions 
were  elaborated  in  Committee  of  the  Whole,  and  reported  to  the 
House  as  the  basis  of  the  plan  of  a  Federal  Government.  They 
were  altered,  amended  and  modified  from  time  to  time,  but  without 
essentially  changing  their  complexion,  until,  on  Saturday  the  30th 
June,  the  question  again  came  up  on  the  troublesome  resolution — 

*  Rhode  Island  appointed  no  delegates  to  the  Convention,  and  the  New  Hamp- 
shire members  had  not  yet  arrived. 

t  The  following  is  the  vote  on  Mr.  Wilson's  motion  :     Yeas— Massachusetts,  ' 
Pennsylvania,  Virginia,  North  Carolina,  South  Carolina,  Georgia— 6. 

Nays— Connecticut,  New  York,  New  Jersey,  Delaware,  Maryland— 5.  Ham- 
ilton, of  New  York,  favored  the  motion,  but  his  two  colleagues,  Yates  and  Lan- 
sing, who  were  opposed,  cast  the  vote  of  the  State. 


164:  LIVES  OF   THE  CHIEF-JUSTICES. 

"  That  in  the  second  branch  of  the  Legislature  of  the  United  States, 
each  State  should  have  an  equal  vote."  Upon  this  a  stormy  and 
highly  exciting  discussion  arose.  Judge  Wilson  contended  with 
great  earnestness  against  the  proposition.  It  was  sustained  by 
Ellsworth  with  an  equal  degree  of  zeal  and  ardor,  and  moreover  with 
a  closer  logic.  But  the  Connecticut  delegate  encountered  a  more  for- 
midable opposition  in  the  clear  and  pointed  reasoning  of  Madison, 
and  the  practical  and  plain  common  sense  of  Franklin.  "  A  joiner/' 
said  Franklin,  resorting  as  usual  to  one  of  his  homely  illustrations, 
"  when  he  wants  to  fit  two  boards,  takes  off  with  his  plane  the  un- 
even parts  from  each  side,  and  thus  they  fit.  Let  us  do  the  same — 
we  are  all  met  to  do  something."  He  then  proposed  the  singular 
expedient  that  in  the  passage  of  general  laws  in  the  second  branch 
of  the  national  Legislature,  each  State  should  have  a  right  of  suf- 
frage in  proportion  to  the  sums  they  respectively  contributed,  but  in 
all  acts  of  authority  and  sovereignty  the  vote  should  be  equal. 

The  debate  grew  warm  and  animated,  nay,  even  stormy.  Mr. 
Bedford  of  Delaware  took  the  floor,  and  amid  the  most  intense 
excitement,  launched  the  arrows  of  his  scathing  invective  and  bitter 
sarcasm  on  every  side  against  the  opponents  of  an  equal  representation. 
"  Even  the  diminutive  State  of  Georgia,"  he  exclaimed,  turning  to  the 
now  hesitating  delegation  from  that  State,  "  has  an  eye  to  her  future 
wealth  and  greatness.  South  Carolina,  puffed  up  with  the  possession 
of  her  wealth  and  negroes,  and  North  Carolina,  are  all,  from  different 
views,  united  with  the  great  States.  And  these  latter,  although  it 
is  said  they  can  never,  from  interested  views,  form  a  coalition,  we 
find  united  in  one  scheme  of  interest  and  ambition,  notwithstanding 
they  endeavor  to  amuse  us  with  the  purity  of  their  principles  and  the 
rectitude  of  their  intentions,  in  asserting  that  the  General  Govern- 
ment must  be  drawn  from  an  equal  representation  of  the  people. 
Pretences  to  support  ambition  are  never  wanting."  ***** 
"I do  not  trust  you,  gentlemen."  He  continued  with  increased  vehe- 
mence— "  Where  is  your  plighted  faith  ?  Will  you  crush  the 
smaller  States,  or  must  they  be  left  unmolested  ?  Sooner  than  be 
ruined,  there  are  foreign  powers  who  will  take  us  by  the  hand."* 

The  excitement  was  now  intense.    The  period  appeared  to  have 

*  See  Yates'  Minutes. 


JOHN  RUTLEDGE.  165 

approached  when  the  Convention  was  about  to  be  dissolved.  As 
Mr.  Luther  Martin  subsequently  remarked  to  the  Maryland  Legis- 
lature, it  now  seemed  "  scarce  held  together  by  the  strength  of  a 
hair."  It  was  a  critical  moment  in  the  history  of  the  country  ;  on 
the  change  of  a  single  vote  the  most  stupendous  issues  were  sus- 
pended. In  the  midst  of  the  confusion  and  excitement  of  the  debate, 
the  Convention  adjourned  without  taking  the  question.  Fortunately 
an  intervening  Sunday  afforded  time  Tor  reflection  and  cool  delibera- 
tion. At  the  reassembling  on  Monday  morning  the  vote  was  taken 
on  Mr.  Ellsworth's  proposition  for  an  equality  in  the  second  branch. 
One  of  the  two  delegates  from  Georgia  wavered,  not  from  any 
change  of  view,  but  because  of  his  fear  that  the  Convention  would 
dissolve  without  further  action,  changed  his  vote,  and  thus  divided 
the  State.  The  result  was  five  States  in  favor  of  the  proposition, 
five  against  it,  and  Georgia  divided.  "There  was,"  says  Mr.  Mar- 
tin, "  a  total  stand,  and  we  did  not  seem  very  likely  to  proceed  any 
further." 

At  this  critical  moment  there  was  found  in  the  Convention  a  suf- 
ficient number  of  men  of  enlarged  and  liberal  views,  to  change  the 
aspect  of  affairs.  South  Carolina,  generously  and  magnanimously, 
stepped  forward  as  the  mediator  between  the  large  and  small  States, 
and  proposed  a  compromise.  Gen.  Pinckney  moved  a  select  commit- 
tee of  one  from  each  State,  to  take  into  consideration  both  branches 
of  the  Legislature.  The  extreme  men  on  both  sides  hung  back. 

"It  is  attempted  again  to  compromise  I"  exclaimed  Mr.  Martin. 
"  You  MUST  give  each  State  an  equal  suffrage,  or  our  business  is  at 
an  end."  Judge  Wilson  was  equally  obstinate  and  dogmatical  on 
the  other  side,  and  did  not  approve  of  the  motion  for  a  committee  ; 
and  even  Madison  observed  that  "  committees  only  delay  business," 
and  thought  the  matter  might  be  decided  on  the  spot.  But  Roger 
Sherman  believed  a  committee  was  "necessary  to  set  us  right." 
Gov.  Randolph  was  in  favor  of  its  appointment,  but  considering  the 
warmth  of  debate  exhibited  on  Saturday,  confessed  "  no  great 
hopes  that  any  good  will  arise  from  it  j"  and  Mr.  Gerry,  believing 
that  accommodation  was  absolutely  necessary,  and  that  the  world  at 
large  expected  something  from  the  Convention,  was  desirous  of  see- 
ing "if  no  concession  could  be  made." 


1QQ  LIVES  OF  THE  CHIEF-JUSTICES. 

The  motion  to  appoint  the  committee  was  carried,  and  the  mem- 
bers balloted  for  on  the  spot.  John  Rutledge  was  chosen  on  be- 
half of  the  State  of  South  Carolina.  Its  composition  was,  in  other 
respects,  also,  singularly  fortunate.  The  members  selected  from  the 
three  large  States,  Gerry  from  Massachusetts,  Franklin  from  Penn- 
sylvania, and  Mason  from  Yirginia,  were  among  the  most  moderate, 
liberal,  and  conciliatory  members  of  the  Convention.  The  former  of 
these  was  chosen  Chairman,  and  the  committee  immediately  com- 
menced its  deliberations,  the  Convention  having  in  the  mean  time 
adjourned. 

Mr.  Yates  of  New  York  was  a  member  of  this  committee  of  con- 
ference, and  has  briefly  described  its  proceedings  in  his  minutes. 
Both  sides,  it  seems,  at  first  adhered  to  their  original  positions  ;  Mr. 
Yates  thereupon  gave  his  views  in  detail,  he  being,  as  is  well  known, 
opposed  to  a  consolidated,  and  in  favor  of  a  strictly  federal  union. 
These  remarks,  he  says,  gave  rise  to  the  motion  of  Dr.  Franklin  for 
the  compromise  which  was  subsequently  agreed  upon,  and  has  be- 
come the  foundation  and  corner-stone  of  the  union  of  these  States. 
In  the  first  branch  of  the  national  Legislature  each  State  should 
be  allowed  one  member  for  every  forty  thousand  inhabitants,  this 
branch  to  have  the  sole  right  of  originating  all  money  bills  ;  in  the 
second  branch,  each  State  should  have  an  equal  vote.  Such  was, 
substantially,  the  report  of  the  committee.  It  was,  says  Mr.  Madi- 
son, lardy  acquiesced  in  by  the  members  of  the  committee  who  op- 
posed an  equality  of  votes,  and  it  was  evidently  considered  by  mem- 
bers on  the  other  side  to  be  a  gaining  of  their  point.  As  a  compro- 
mise it  was  certainly  the  most  obvious  one  that  could  have  suggested 
itself,  and  perhaps  the  only  one  that  could  have  been  adopted.  The 
principle  of  representation  according  to  population  and  numbers 
established  in  regard  to  the  first  branch,  secured  the  larger  States  ; 
while  the  equality  of  votes  in  the  second  branch  preserved  the  iden- 
tity and  sovereignty  of  all  the  States.  And  yet  the  compromise,  as 
has  usually  been  the  case  in  regard  to  all  the  compromises  of  great  na- 
tional questions,  failed  at  first  to  satisfy  the  extreme  men  of  either 
division.  The  report  of  the  committee  was  received  with  many 
marks  of  dissent.  "  The  committee  has  exceeded  its  powers  !"  ex- 
claimed Judge  Wilson.  Gouvcrneur  Morris  also  warmly  and  ear- 


JOHN  RUTLEDGE.  jg/j 

nestly  opposed  it.  It  is  somewhat  surprising  to  find  Mr.  Madison  on 
the  same  side  ;  he  was  only  restrained  from  "  animadverting  on  the 
report,"  by  the  respect  he  had  for  the  members  of  the  committee. 
He  could  "  see  nothing  of  concession  in  it."  *  On  the  other  hand 
some  of  the  advocates  of  State  sovereignty  and  an  equality  of  repre- 
sentation in  both  branches,  were  far  from  satisfied.  Of  this  number 
was  Mr.  Luther  Martin  of  Maryland  ;  while  so  great  was  the  dis- 
gust of  Messrs.  Yates  and  Lansing,  that  they  left  the  Convention  and 
returned  home,  convinced,  as  they  remark  in  their  letter  to  Gov- 
ernor Clinton,  that  no  alteration  was  to  be  expected  in  the  proposed 
system  to  conform  it  to  their  ideas  of  expediency  and  safety,  and 
that  their  "further  attendance  would  be  fruitless  and  unavailing." 
New  York  was  therefore  left  for  the  remainder  of  the  session  with- 
out a  quorum  on  the  floor  of  the  Convention. 

Happy  was  it  for  the  country  that  these  extreme  counsels  did  not 
prevail  ; — that  the  Convention  numbered  among  its  members  such 
men  as  Franklin  and  Washington,  f  Sherman  and  Ellsworth,  Mason 
and  Rutledge — men  who  were  determined  to  complete  the  great 
work  for  which  they  had  assembled,  and  not  to  separate  until  that 
work  was  done.|  How  and  in  what  manner  it  was  accomplished 
are  matters  of  history.  Though  intimately  connected  with  the  pub- 

*  See  Yates'  Minutes  of  the  Convention. 

t  Mr.  Luther  Martin,  in  his  address  to  the  Maryland  Legislature,  complains 
somewhat  sharply  of  the  conduct  of  both  Washington  and  Franklin.  "  During 
this  struggle  to  prevent  the  large  States  from  having  all  power  in  their  hands," 
he  says,  "  which  had  nearly  terminated  in  a  dissolution  of  the  Convention,  it  did 
not  appear  to  me  that  either  of  those  illustrious  characters,  the  honorable  Mr. 
Washington,  or  the  President  of  the  State  of  Pennsylvania,  was  disposed  to  favor 
the  claims  of  the  smaller  States,  against  the  undue  superiority  attempted  by  the 
large  States ;  on  the  contrary,  the  honorable  President  of  Pennsylvania  was  a 
member  of  the  committee  of  compromise,  and  there  advocated  the  right  of  the 
large  States  to  an  inequality  in  both  branches,  and  only  ultimately  conceded  it  in 
the  second  branch,  on  the  principle  of  conciliation,  when  it  was  found  no  other 
terms  would  be  accepted.  This,  sir,  I  think  it  my  duty  to  mention,  for  the  con- 
sideration of  those  who  endeavor  to  prop  up  a  dangerous  and  defective  system  by 
great  names,"  &c. 

|  Mr.  Mason  of  Virginia,  declared  in  his  place,  that  instead  of  returning  home 
to  attend  to  his  private  affairs,  "  he  would  bury  his  bones  in  this  city  rather  than 
expose  his  country  to  the  consequences  of  a  dissolution  of  the  Convention  without 
aiiy  thing  being  done." 


168  LIVES  OF  THE  CHIEF-JUSTICES. 

lie  life  of  the  subject  of  this  memoir,  a  minute  detail  of  this  history 
would  lead  me  beyond  the  limits  and  object  of  the  present  sketch. 
The  general  posture  of  affairs  in  the  Convention  at  this  most  critical 
period,  has  been  glanced  at  for  the  purpose  of  indicating  the  posi- 
tion occupied  by  Rutledge  therein,  and  his  share  in  the  adjustment 
of  this  momentous  question.  Having  done  thus  much,  I  shall  fol- 
low no  further  the  regular  proceedings  of  the  Convention,  but  con- 
fine myself  to  a  brief  review  of  the  particular  services  rendered  by 
Chancellor  Rutledge  in  the  Convention,  and  the  opinions  entertained 
by  him  in  regard  to  some  of  the  more  important  subjects  which, 
from  time  to  time,  were  brought  up  for  discussion. 

We  have  seen  that  he  was  a  member  of  the  committee  of  eleven, 
which  reported  the  compromise  in  regard  to  the  representation  of 
the  States  in  the  national  Legislature.  The  high  confidence  reposed 
by  the  Convention  in  his  abilities  and  character,  led  to  his  being 
selected  also  to  serve  on  several  others  of  the  most  important  com- 
mittees of  the  House.  A  series  of  resolutions  having  been  agreed 
to,  after  a  protracted  discussion,  as  the  basis  of  the  proposed  Con- 
stitution, it  was  determined  to  refer  them  to  a  select  committee  of 
five,  for  the  purpose  of  drafting  a  Constitution.  Rutledge  was 
chosen  chairman  of  this  committee.  His  associates  were  Randolph 
of  Virginia,  Grorham  of  Massachusetts,  Ellsworth  of  Connecticut,  and 
Wilson  of  Pennsylvania.  On  the  6th  of  August,  1187,  Rutledge 
had  the  honor  of  reporting  to  the  Convention  the  first  draft  of  a 
Constitution  for  the  United  States.  I  am  not  aware  that  it  can 
now  be  determined  that  the  whole  of  this  draft,  or  if  not  the 
whole,  what  particular  part,  is  from  his  pen.  It  is  not,  indeed,  the 
Constitution  as  it  was  finally  adopted — many  changes  and  modifica- 
tions having  been  made,  in  the  discussions  which  subsequently  took 
place — but  the  outlines  and  substantial  parts  are  there.  The  pre- 
amble is  rather  remarkable.  It  is  in  precisely  the  words  of  the  draft 
originally  submitted  by  Mr.  Charles  Pinckney :  "  We  the  people  OF 
THE  STATES  of  New  Hampshire,  Rhode  Island,  &c.,  do  ordain,  de- 
clare and  establish  the  following  Constitution,  for  the  government  of 
ourselves  and  our  posterity .'\  It  is  worthy  of  remark  that  on  the 
questions,  separately  taken,  of  agreeing  to  this  preamble,  it  passed 
unanimously  in  the,  affirmative*  Subsequently,  when  the  terms  of 
*  See  Journal  of  Convention,  August  7th,  1787. 


JOHN  RUTLEDGE.  16g 

the  Constitution  had  been  fully  discussed  and  agreed  on,  a  commit- 
tee of  five  was  appointed  to  revise  the  style,  and  arrange  the  arti- 
cles of  the  Constitution.  This  committee  consisted  of  Mr.  Johnson, 
Mr.  Hamilton,  Mr.  Gouverueur  Morris,  Mr.  Madison,  and  Mr. 
King..*  It  is  said  that  the  style  and  finish,  of  the  Constitution  are 
to  be  attributed  in  a  great  degree  to  the  elegant  pen  of  Mr.  Morris  ; 
to  the  same  source,  perhaps,  may  also  be  attributed  the  change  of 
phraseology  in  the  preamble.  Instead  of  the  preamble  of  Mr.  Rut- 
ledge's  draft  :  "  We,  the  people  of  the  States,"  &c.,  which,  we  have 
seen,  passed  unanimously  in  the  affirmative,  the  committee  of  revision 
reported  the  preamble  :  "  We,  the  people  of  the  United  States,  in 
order  to  form  a  more  perfect  union,  to  establish  justice,  insure  do- 
mestic tranquillity,"  &c.f 

The  Constitution,  as  reported  by  Mr.  Rutledge,  provided  for  the 
election  of  a  President  of  the  United  States  by  the  national  Legisla- 
ture, by  ballot,  to  hold  office  for  seven  years,  and  not  to  be  eligible 
a  second  time.  This  was  a  favorite  proposition  with  Mr  Rutledge, 
except  that  instead  of  electing  the  Executive  by  the  Legislature,  he 
wished  him  to  be  elected  by  the  second  branch  or  Senate  alone. 
Upon  this  subject  he  avowed  his  opinions  in  the  Convention  at  a 
very  early  day.  When  the  question  in  regard  to  the  Executive  first 
came  up,  there  seemed  to  be  an  unwillingness  on  the  part  of  mem- 
bers to  express  their  opinion,  and  the  resolution  was  about  to  be  put 
without  debate.  Rutledge  thereupon  arose  and  animadverted  on  the 
shyness  of  gentlemen  upon  this  and  other  subjects.  It  looked,  he 
said,  as  if  they  supposed  themselves  precluded,  by  having  frankly  dis- 
closed their  opinions,  from  afterwards  changing  them,  which  lie  did 
not  take  to  be  at  all  the  case.  He  then  frankly  avowed  that  he  was 
in  favor  of  a  single  person  as  Executive,  though  he  was  not  for  giv- 
ing him  the  power  of  war  and  peace.J  Subsequently,  on  the  same 
day,  he  moved  that  the  Executive  be  elected  by  the  second  branch 

*  Journal  of  Constitution.  September  8th,  1787. 

f  Was  this  alteration  regarded  at  the  time  in  any  other  light  than  as  a  mere 
revision  of  the  language,  and  verbal  alteration?  It  has  been  since  thought  signifi- 
cant in  its  application  to  the  great  question  of  power  as  between  the  federal  Gov- 
ernment and  the  States. 

$  Madison  Papers,  vol.  ii.  p.  762.  Gov.  Randolph  strenuously  opposed  a  unity 
in  the  Executive  magistracy. 


170  LIVES  OF  THE  CHIEF-JUSTICES. 

of  the  Legislature.  Mr.  Sherman  was  for  the  appointment  by  the 
Legislature  ;  Mr.  Wilson  for  an  election  by  the  people  of  the  States 
through  the  medium  of  electors  ;  Mr.  Ellsworth  of  electors  appoint- 
ed by  the  State  Legislatures  ;  Mr.  Gerry  was  opposed  to  all  these 
plans,  and  offered  one  of  his  own,  which  is  certainly  remarkable  for 
its  novelty.  He  was  for  giving  to  the  Legislatures  of  the  States 
the  right  to  nominate  candidates,  and  to  the  electors  chosen  by  the 
people  the  power  of  appointmfM  ;  lie  was,  however,  not  clear  that 
the  people  ought  to  act  directly,  even  in  the  choice  of  electors.* 
The  question  of  the  appointment  excited  much  discussion  in  the  Con- 
vention, and  much  change  of  opinion  was  manifested  in  regard  to  it. 
Mr.  Rutledge,  it  seems,  did  not  press  his  proposition  of  an  election 
by  the  second  branch,  but  adhered  strenuously  to  the  appointment 
by  the  national  Legislature,  and  the  ineligibility  of  the  Executive 
for  a  second  term.  The  Convention  at  first  sanctioned  this  mode  by 
a  unanimous  vote.  The  vote  was  subsequently  reconsidered,  and  it 
was  resolved  that  the  national  Executive  should  be  appointed  by 
electors,  chosen  by  the  State  Legislatures.  This  resolution  was  also 
reconsidered,  and  the  Convention  again  resolved  to  elect  the  Ex- 
ecutive by  the  national  Legislature  ;  that  he  should  serve  for  seven 
years,  and  be  ineligible  a  second  time.  lu  this  shape  it  went  to  the 
committee  of  detail,  and  was  reported  in  Rutledge's  draft  of  a  Con- 
stitution. But  the  plan  was  again  altered  by  the  Convention,  which 
finally  agreed  to  the  mode  of  election  as  it  now  stands,  namely,  by 
electors  appointed  in  each  State,  in  the  manner  its  Legislature  shall 
direct. 

Rutledge  was  also  in  favor  of  limiting  the  power  of  the  Executive, 
not  only  in  regard  to  the  question  of  his  right  to  make  peace  and 
declare  war,  but  also  to  some  extent  in  regard  to  his  authority  to 

*  Madison  Papers,  vol  ii.  p.  770.  Mr.  Gerry  may  be  called  the  Sieyes  of  the 
Convention.  His  mind  was  active  and  acute,  but  somewhat  too  fond  of  refine- 
ments and  abstractions.  His  plan,  though  less  artificial  than  the  ingenious  system 
which  was  offered  to  Bonaparte  by  Sieyes,  was  still  such  as  might  have  origi- 
nated in  the  brain  of  that  famous  philosopher,  Avho  to  use  his  own  expression, 
had  "  carried  the  science  of  politics  to  perfection." 

Mr.  Gerry,  though  opposed  to  both  monarchy  and  aristocracy,  was  in  favor  of 
having  the  members  of  the  first  branch  appointed  by  the  State  Legislatures,  from 
a  certain  number  of  persons  nominated  by  the  people  in  the  respective  districts. 


JOHN  RUTLEDGE.  171 

appoint  to  office.  Thus,  he  contended  that  the  appointment  of  the 
national  Judiciary  should  never  be  entrusted  to  one  person;  "the 
people,"  he  remarked,  "  will  think  we  are  leaning  too  much  to 
monarchy."  In  his  opinion,  the  Judiciary  should  be  chosen  by  one, 
or  both  branches  of  the  Legislature.  He  thought,  too,  that  there 
was  no  necessity  for  establishing  any  national  tribunal,  except  a 
single  supreme  one,  as  a  kind  of  appellate  court,  the  State  tribunals 
deciding  in  all  cases  in  the  first  instance.* 

But  perhaps  the  opinion  of  which  he  was  the  most  tenacious,  and 
which  he  advocated  with  the  greatest  earnestness  and  the  utmost 
sincerity  of  conviction,  was  that  the  proportion  of  representation  of 
each  State  in  the  national  Legislature,  should  not  be  based  upon 
population,  but  should  be  in  accordance  with  the  quota  of  its  contri- 
bution. In  sustaining  this  proposition  Mr.  Rutledge  advanced  a 
very  extraordinary  doctrine,  namely,  that  property  was  the  principal 
object  of  society,  and,  therefore,  the  most  correct  and  just  basis  of 
representation.  This  doctrine  had  been  first  broached  on  the  floor 
of  the  Convention  by  Gouverneur  Morris,  a  gentleman  of  great  bril- 
liancy and  acuteness  of  mind,  as  well  as  versatility  of  talent,  who 
leaned  strongly  to  the  side  of  aristocratic  institutions  and  govern- 
ment.f  "  Life  and  liberty,"  said  Mr.  Morris,  "  were  generally  said 
to  be  of  more  value  than  property.  An  accurate  view  of  the  mat- 
ter would,  nevertheless,  prove  that  property  was  the  main  object  of 
society.  The  savage  state  was  more  favorable  to  liberty  than  the 
civilized,  and  sufficiently  so  to  life.  It  was  preferred  by  all  men  who 
had  not  acquired  a  taste  for  property,  &c.  If  property,  then,  was  the 
main  object  of  government,  certainly  it  ought  to  be  one  measure  of 
the  influence  due  to  those  who  were  to  be  affected  by  the  govern- 
ment." To  this  conclusion  Mr.  Rutledge,  in  a  measure,  assented, 
remarking  that  "  The  gentleman  last  up  had  spoken  some  of  his  sen- 
timents precisely.  Property  was  certainly  the  principal  object  of  soci- 
ety," &c.  He  thereupon  moved  that  the  suffrages  of  the  States  be 
proportioned  by  the  sums  paid  toward  the  general  revenue  by  each 

*  Madison  Papers,  vol.  ii.  p.  792. 

t  Mr.  Morris  did  not  hesitate  to  avow  "  that  hie  creed  was  that  there  never 
was,  nor  ever  will  be  a  civilized  society  without  an  aristocracy." — Debates  in  (Jon- 
vention,  Madison  Papers,  vol.  ii.  p.  1013. 


172  LIVES  OF  THE  CHIEF-JUSTICES. 

State  respectively.  The  proposition,  however,  found  but  little  favor 
in  the  Convention,  and  was  negatived  by  a  decisive  vote,  South 
Carolina  alone  being  in  the  affirmative.* 

The  views  of  Rutledge  were  freely  and  fully  expressed,  upon  nearly 
every  question  of  importance  which  was  raised  in  the  Convention. 
They  were  always  frank,  bold  and  independent.  However  erroneous 
may  have  been  some  of  these  impressions,  no  one  will  deny  that  they 
were  the  honest  convictions  of  a  mind  which  endeavored  to  bring 
every  proposition  to  the  test  of  truth.  No  narrow  and  partial  views 
governed  his  course  of  action.  He  opposed  with  as  much  earnest- 
ness the  motion  of  a  friend  and  colleague,  when  he  believed  it  wrong, 
as  if  the  proposition  had  proceeded  from  a  part  of  the  confederacy 
whose  interests  were  in  direct  conflict  with  his  own.  Thus  when  Mr. 
Einckney  moved  to  clothe  the  national  Legislature  with  power,  "  to 
negative  all  laws  passed  by  the  several  States,  interfering,  in  the 
opinion  of  the  Legislature,  with  the  general  interests  and  harmony 
of  the  Union,"  Rutledge  warmly  opposed  the  proposition.  "This 
alone,  if  nothing  else,"  he  exclaimed,  "  will  damn,  and  ougljt  to 
damn  the  Constitution.  Will  any  State  ever  agree  to  be  bound 
hand  and  foot  in  this  manner  ?  It  is  worse  than  making  mere  cor- 
porations of  them,  whose  by-laws  would  not  be  subject  to  this 
shackle."f  And  so,  too,  when  the  same  gentleman  proposed  an 
amendment,  "that  no  act  of  the  Legislature,  for  the  purpose  of 
regulating  the  commerce  of  the  United  States  with  foreign  powers, 
or  among  the  several  States,  should  be  passed  without  the  assent  of 
two-thirds  of  the  members  of  each  house,"  Rutledge,  rising  superior 
to  mere  sectional  considerations  and  the  interests  of  the  present  mo- 
ment, opposed  the  motion.  A  navigation  act,  he  thought,  would 
bear  hard  for  a  little  while  on  the  southern  States,  but  as  the  Con- 
vention was  laying  the  foundation  for  a  great  empire,  it  ought  to 
take  a  permanent  view  of  the  subject,  and  not  look  at  the  present 
moment  only.J 

It  is,  however,  due  to  candor  and  the  truth  of  history  to  say  that 
Rutledge  stood  firm  and  unyielding  to  what  he  esteemed  the  sub- 

*  Debates  in  Convention — Madison  Papers,  vol.  ii.  p.  1035. 
t  Madison  Papers,  vol.  iiL  1411. 
t  Madison  Papers,  vol.  iiL  p.  1454. 


JOHN  RUTLEDGE.  173 

stantial  interests  of  his  section  of  the  confederacy.  Thus,  though 
assenting  to  the  compromise  proposed  on  the  question  of  representa- 
tion, he  refused  to  yield  to  the  proposal  for  the  immediate  prohibi- 
tion of  the  importation  of  slaves.  The  people  of  North  Carolina, 
South  Carolina  and  Georgia,  he  declared,  will  never  agree  to  the 
proposed  Constitution,  unless  their  right  to  import  slaves  be  un- 
touched ;  and  the  true  question,  therefore,  he  thought,  was  whether 
the  southern  States  should,  or  should  not,  be  parties  to  the  Union. 
Finally,  he  acceded  to  the  proposition  that  the  importation  of  slaves 
should  not  be  prohibited  prior  to  the  year  1808  ;  and  when  Mr. 
Madison  moved  the  consideration  of  a  proposition  for  making  amend- 
ments to  the  Constitution,  Rutledge  offered  to  add  the  provision, 
which  was  adopted  by  the  Convention,  that  no  amendments  which 
should  be  made  prior  to  1808,  should  in  any  way  affect ,  the  clause 
of  the  Constitution  relative  to  this  subject.* 

The  labors  of  the  Conventi6n  were  brought  to  a  close  on  the  17th 
of  September,  1787.  On  that  day,  we  are  told,  Dr.  Franklin  rose 
with  a  written  speech  in  his  hand,  which  his  friend,  Mr.  Wilson, 
read  to  the  Convention.  It  was  highly  conciliatory.  The  object  was 
to  induce  the  Convention  unanimously  to  agree  to  the  Constitution 
as  formed,  or  at  least  to  sanction  it,  pro  forma,  by  the  signature  of 
their  names  ;  and  in  order  to  avoid  the  scruples  of  any  tender  con- 
sciences, he  proposed  the  following  ambiguous  form :  "  Done  in 
Convention  by  the  unanimous  consent  of  the  States  present,"  &c.  The 
motion  was  adopted  by  all  the  States  except  South  Carolina,  Gen. 
Pinckney  and  Mr.  Butler  dissenting,  which  divided  the  vote  of  that 
State.  Notwithstanding  this  equivocal  expression  of  assent,  three 
of  the  members,  Messrs.  Gerry  of  Massachusetts,  and  Randolph  and 
Mason  of  Virginia,  refused  to  sign.f  All  the  rest  of  the  members 
present,  including  the  whole  of  the  South  Carolina  delegation,  then 
affixed  their  names,  and  the  Convention  adjourned  sine  die. 

*  Madison  Papers,  vol  iii.  p.  1536. 

f  Messrs.  Yates  and  Lansing,  it  will  be  recollected,  had  left  the  Convention. 
Besides  these  there  were  eleven  other  members  of  the  Convention  who  had 
attended  during  the  session,  whose  names  do  not  appear  affixed  to  the  instrument 
Among  these  are  Oliver  Ellsworth  and  Luther  Martin,  the  former  of  whom,  how- 
ever, was  accidentally  absent,  as  it  is  well  known  he  was  warmly  in  favor  of  the 
Constitution.— See  subsequent  sketch  of  Ellsworth. 


1Y4  LIVES  OF  THE  CHIEF-JUSTICES. 

Rutledge  and  his  associates  returned  to  South  Carolina,  the  firm 
and  ardent  champions  of  the  new  Constitution.  Their  labors  and 
influence  contributed  doubtless,  in  a  very  great  degree,  to  its  ratifi- 
cation on  the  part  of  that  State.  On  the  16th  of  January  follow- 
ing, the  subject  was  brought  before  the  Legislature,  on  a  resolution 
to  call  a  convention  of  the  people  to  consider  the  Constitution.  A 
long  and  interesting  debate  followed — a  debate  characterized  by  as 
much  ability,  perhaps,  as  any  which  occurred  in  either  of  the  States 
on  this  momentous  question.  The  South  Carolina  Legislature,  at 
that  period,  was  a  body  of  the  most  exalted  character.  Nearly 
every  distinguished  and  eminent  citizen  of  the  State  was  a  member. 
Among  them  were  the  three  Rutledges,  John,  Edward  and  Hugh, 
the  Pinckneys,  Rawlins  Lowndes,  Pierce  Butler,  Robert  Barnwell, 
Dr.  Ramsay,  Thomas  Bee,  Judges  Grimke  and  Burke,  Chancellor 
Mathews,  and  many  others  of  equal  respectability.  The  debate  was 
opened  by  Mr.  Charles  Pinckney,  in  an  elaborate  and  masterly  speech, 
explanatory  of  the  principal  features  of  the  new  Constitution.  The 
discussion  which  followed  soon  developed  the  fact  that  the  majority, 
comprising  most  of  the  intellect  and  talent  of  the  State,  was 
decidedly  in  favor  of  the  ratification  of  the  Constitution.  The  Hon- 
orable Rawlins  Lowndes  was  the  only  gentleman  of  any  considera- 
ble distinction,  who  as  the  representative  of  a  minority,  strong  in  point 
of  numbers,  opposed  the  Constitution.  He  conducted  the  discussion 
with  much  ability  on  his  side,  but  was  successfully  met  and  answered 
by  Mr.  Charles  Pinckney,  Charles  Cotesworth  Pinckney,  Edward 
Rutledge,  Robert  Barnwell,  and  Chancellor  Mathews,  who  mainly 
conducted  the  debate  on  the  other  side.  Of  course  it  was  not  to  be 
expected  that  with  such  an  overwhelming  force  against  him,  Mr. 
Lowndes  could  make  a  successful  stand.  He  pressed  his  points, 
however,  with  great  shrewdness,  and  the  utmost  pertinacity.  Chan- 
cellor Rutledge  did  not  mingle  in  these  debates  to  any  considerable 
extent,  believing  the  convention  to  be  the  proper  place  for  a  full 
discussion  of  the  question.  He  took  up  the  argument,  however, 
against  Mr.  Lowndes,  in  regard  to  the  treaty-making  power  vested 
by  the  Constitution  in  the  Senate,  and  showed  very  clearly  that  no 
solid  reasons  could  be  given  to  justify  the  fears  expressed  by  his  op- 
ponent, that  this  power  might  be  used  to  the  subversion  of  the  laws 


JOHN  RUTLEDGE.  175 

of  the  country  and  the  public  liberty.  Mr.  Lowndes,  far  from 
yielding  the  point,  reiterated  his  proposition,  and  attempted  to  sus- 
tain it  by  additional  arguments.  This  again  called  out  Chancellor 
Rutledge,  who,  after  declaring  the  pleasure  with  which  he  had  often 
hea/d  the  gentleman,  expressed  astonishment  at  his  perseverance  on 
the  present  occasion.  His  obstinacy,  he  remarked,  brought  to  his 
recollection  a  friend  to  his  country,  once  a  member  of  that  house, 
who  said  :  "  It  is  generally  imputed  to  me  that  I  am  obstinate  ; 
this  is  a  mistake  ;  I  am  not  so,  but  hard  to  be  convinced.".  Mr. 
Lowudes  had  declared  that  his  own  sentiments  were  so  opposed  to 
the  voice  of  his  constituents,  that  he  did  not  expect  to  be  a  member 
of  the  Convention.  Alluding  to  this,  and  the  preference  which  Mr. 
Lowndes  had  declared  for  the  confederation,  the  Chancellor  ex- 
pressed the  hope  that  his  opponent  would  be  appointed,  adding  that 
he  "  did  not  hesitate  to  pledge  himself  to  prove  demonstrably,  that 
all  those  grounds  on  which  he  dwelt  so  much,  amounted  to  nothing 
more  than  mere  declamation  ;  that  his  boasted  confederation  was 
not  worth  a  farthing,  and  that  if  Mr.  Chairman  was  intrenched  in 
such  instruments  up  to  his  chin,  they  would  not  shield  him  from  one 
single  national  calamity."  Mr.  Lowndes,  however,  does  not  appear 
to  have  been  a  member  of  the  Convention,  and  if  Rutledge  redeemed 
his  pledge,  it  must  have  been  to  some  person  other  than  that  gentleman. 

Notwithstanding  the  great  preponderance  of  talent  and  influence 
in  favor  of  the  Constitution,  the  resolution  calling  the  Convention 
was  passed  in  the  Legislature  by  a  very  close  vote — only  one  ma- 
jority— and  it  is  also  worthy  of  remark,  that  Mr.  Lowndes  himself, 
voted  in  the  affirmative.* 

The  Convention  assembled  at  Charleston  on  the  12th  of  May, 
1788.  Rutledge  was  a  member,  with  both  his  associates  on  the 
bench,  and  nearly  every  gentleman  of  distinction  and  talent  in  the 
State.  The  assembly  was  composed  of  upwards  of  two  hundred 
members,  and  the  Governor  of  the  State,  Thomas  Pinckney,  was 
elected  to  preside  over  it.  Mr.  Charles  Pinckney  appropriately 
opened  the  deliberations,  as  one  of  the  delegates  to  the  Federal  Con- 
vention. His  speech,  upon  this  occasion,  was  a  philosophical  and 
statesman-like  exposition  of  the  nature  of  government  in  general,  a 
*  See  Elliott's  Debates  on  the  Federal  Constitution,  vol.  iv.  p.  303. 


176  LIVES  OF  THE  CHIEF-JUSTICES. 

comprehensive  review  of  the  governments  of  the  various  States  and 
the  principles  established  therein,  and  a  clear  and  forcible  applica- 
tion of  the  subject  to  that  new  and  untried  system  which  the  Fede- 
ral Convention  had  agreed  upon.*  The  discussion  thus  opened  con- 
tinued more  than  a  week,  and  it  is  unnecessary  to  add  that  here,  as 
in  every  other  proper  place  and  on  all  suitable  occasions,  Chancellor 
Rutledge  was  the  eloquent  advocate,  and  the  firm,  unwavering, 
steadfast  champion  of  the  Constitution,  substantially  as  it  came  from 
the  hands  of  its  framers. 

On  the  21st  of  May,  General  Sumpter,  who  was  opposed  to  the 
Constitution,  moved  an  adjournment  of  the  Convention  until  the 
20th  of  October,  in  order  to  give  time  for  further  consideration.  This 
motion,  after  considerable  debate,  was  rejected  by  a  large  majority. 
Two  days  afterwards  the  vote  was  taken  on  the  question  of  ratifica- 
tion, and  carried  in  the  affirmative  by  a  majority  of  16.  South  Caro- 
lina accepted  the  Federal  Constitution  and  took  her  place  in  the 
Union.  She  was  thus  assigned  a  position  speedily  to  realize  the 
prediction  of  her  distinguished  and  devoted  son,  John  Rutledge, 
who  had  declared  in  reply  to  the  doubts  and  fears  of  his  opponents, 
that  "  so  far  from  thinking  that  the  sun  of  this  country  was  obscured 
by  the  new  Constitution,  he  did  not  doubt  but  that  whenever  it  was 
adopted,  the  sun  of  this  State,  united  with  twelve  other  suns,  would 
exhibit  a  meridian  radiance  astonishing  to  the  world."f 

On  the  organization  of  the  Federal  Government,  Chancellor  Rut- 
ledge  was  handsomely  complimented  by  his  native  State,  in  receiving 
its  electoral  vote  for  the  office  of  Vice-President  of  the  United  States 
— the  vote  of  the  State  being  cast  unanimously  for  Gen.  Washington 
for  President.  This  circumstance,  of  itself,  is  sufficient  to  show  the 
high  place  occupied  by  Rutledge  in  the  estimation  of  his  fellow-citizens, 
and  that  he  was  regarded  then,  as  he  had  been  for  years  previous, 
and  as  he  continued  to  be  for  years  subsequent,  as  among  the  fore- 
most men  in  America.  A  higher  compliment,  if  possible,  certainly 
one  more  honorable  to  his  judicial  character,  was  his  appointment 
by  the  President,  and  unanimous  confirmation  by  the  Senate,  as  an 
Associate-Justice  of  the  Supreme  Court  of  the  United  States,  imme- 

*  Elliott's  Debates,  voL  iv.  pp.  305  to  317. 
t  Elliott's  Debates,  vol.  iv.  p.  299. 


JOHN  EUTLEDGE.  177 

diately  on  its  organization,  in  September,  1789.  The  name  of  Rut- 
ledge  is  next  in  the  order  of  commission  to  that  of  the  Chief- Justice.* 
Indeed,  it  has  been  intimated  that  the  President  only  assigned  the 
Chief- Justiceship  to  Mr.  Jay,  "after  some  deliberation."!  This,  how- 
ever, I  think  is  incorrect.  The  "  Act  to  establish  the  Judicial  Courts 
of  the  United  States"  was  approved  on  the  24th  September,  1789, 
and  the  President  sent  into  the  Senate,  on  the  very  same  day,  his  list 
of  nominations  for  Judges  of  the  Court.  There  is  very  little  doubt 
that  Jay,  above  all  others,  was  Washington's  first  choice  for  the  Chief- 
Justiceship,  and  without  any  "  deliberation  ;"  and  as  little  doubt,  per- 
haps, that  if  Jay  had  declined,  the  office  would  then  have  been  tender- 
ed to  Rutledge  ;  in  which  event,  it  is  more  than  probable  that  Chan- 
cellor Livingston  would  have  been  the  selection  from  New  York  for 
a  seat  upon  the  bench  of  the  Supreme  Court. 

Mr.  Rutledge  was,  as  we  have  seen,  at  the  time  of  his  appoint- 
ment, one  of  the  Chancellors  of  the  State  of  South  Carolina.  In 
the  introduction  to  Desaussure's  Chancery  Reports,  it  is  stated  that 
he  continued  to  hold  this  office  till  his  appointment  in  February, 
1791,  to  the  Chief-Justiceship  of  South  Carolina.  If  this  be  so 
he  must  have  held  the  Chancellorship  and  his  appointment  under  the 
Federal  Government  concurrently,  for  it  does  not  appear  that  he  re- 
signed his  office  as  Associate-Justice  of  the  Supreme  Court,  until  after 
his  appointment  to  the  Chief-Justiceship  of  South  Carolina.  Thomas 
Johnson  of  Maryland,  who  succeeded  Judge  Rutledge  on  the  bench 
of  the  United  States  Supreme  Court,  was  appointed  and  took  his  scat 
at  the  August  term,  1791,  so  that  the  latter  must  have  held  this  place 
up  to  that  tune.  During  the  short  tune,  however,  which  elapsed  be- 
tween his  appointment  and  resignation — a  period  of  less  than  two 
years — it  is  not  probable  that  he  performed  much  active  service. 
The  courts  where  then  in  the  process  of  organization,  and  very  little 
business  could  have  been  transacted  at  this  early  period,  either  at 
the  Circuits  or  in  the  Supreme  Court.  We  have  seen  that  Judge 

*  By  the  Judiciary  Act,  the  Judges  were  to  take  precedence  according  to  the 
dates  of  their  respective  commissions.  The  commission  of  Judge  Rutledge  ia 
dated  the  2Gth  of  September ;  that  of  Judge  Gushing  the  27th ;  Judge  Harrison  the 
28th ;  Judge  Wilson  the  29th,  and  Judge  Blair  the  30th. 

t  See  Preliminary  Notes  to  Wharton's  State  Trials. 
12 


178  LIVES   OF  THE  CHIEF-JUSTICES. 

Rutledge  was  not  present  at  the  organization  of  the  Supreme  Court, 
February  term,  1190,*  nor  indeed  does  it  appear  that  he  was  pre- 
sent at  either  of  the  two  following  terms.  It  is  not  unlikely  that, 
with  the  assistance  perhaps  of  Judge  Iredell,  he  held  the  Circuit 
Courts  for  the  southern  circuit,  comprising  the  States  of  South  Caro- 
lina and  Georgia,  and  North  Carolina  on  the  accession  of  that  State 
to  the  confederacy  ; — but  I  do  not  find  any  thing  of  special  import- 
ance relative  to  this  portion  of  his  judicial  career.  If,  as  Mr. 
Desaussure  states,  Judge  Rutledge  continued  to  hold  the  office  of 
Chancellor  during  this  period,  he  must  have  held  it  nominally, 
merely,  and  without  rendering  any  active  duties.  The  last  case  I 
can  find,  in  which  he  sat  on  the  bench  as  Chancellor,  is  at  the  De- 
cember term,  in  the  year  1189.  Every  other  reported  case  down 
to  the  period  of  his  resignation,  seems  to  have  been  decided  in  his 
absence  by  his  associates,  Chancellors  Hutson  and  Mathews. 

The  politics  of  Judge  Rutledge  had  been  of  the  Federal  stamp  ; 
that  is  to  say,  he  had  been,  as  we  have  already  seen,  ardently  and 
zealously  in  favor  of  the  Federal  Union,  upon  the  principles  em- 
bodied in  the  Constitution  ; — and  he  had  been  also  classed  with  the 
leading  Federalists  of  that  day,  who  sustained  the  administration  of 
President  Washington.  He  was  now  to  separate  from  his  party  upon 
a  vital  and  important  question.  It  was  in  regard  to  the  celebrated 
treaty  of  Mr.  Jay,  which  I  have  alluded  to  in  the  preceding  sketch 
of  that  gentleman.  The  course  taken  by  Rutledge  in  this  matter,  is 
by  no  means  remarkable.  His  prompt,  fearless,  and  independent 
action  in  opposing  the  treaty,  was  precisely  what  might  have  been 
expected  from  a  haughty  but  chivalric  temper,  and  a  mind  not  slow 
to  forget  a  wrong  or  resent  an  injury.  Two  opposite  sentiments — 
passions  they  might  be  called — had  taken  deep  root  in  his  breast, 
and  strongly  influenced,  if  they  did  not  absolutely  control  his  political 
views  and  actions  ;  namely,  antipathy  to  England,  nourished  as  it  was 
by  the  bitter  and  undying  memory  of  past  wrongs,  and  love  for  his  own 
people  and  the  gallant  State  of  his  birth.  And  surely  no  man  ever 
had  cause  to  love  England  less,  or  South  Carolina  more.  It  is  no 
wonder,  therefore,  that  Rutledge  should  have  opposed  and  denounced 
with  passionate  earnestness,  this  treaty,  regarding  it  as  he  did  both  as 

*  See  Life  of  Jay,  ante,  page  47. 


JOHN  RUTLEDGK  179 

an  unworthy  concession  to  the  grasping  policy  of  England,  and  as 
an  unjust  sacrifice  of  the  rights  and  interests  of  that  portion  of  the 
confederacy  to  which  he  belonged.  The  opposition  of  such  men  as 
Rutledge  and  Pinckney  struck  the  friends  of  the  treaty  with  aston- 
ishment and  dismay.  Nor  was  it  a  lukewarm  opposition  ;  he  entered 
into  it  as  he  had  done  into  the  revolutionary  struggle  in  his  native 
State,  with  all  the  warmth  and  ardor,  all  the  energy  and  impetuosity 
of  his  temper.  This  is  manifest  from  the  strong  language  used  by 
some  of  the  prominent  Federalists  of  the  day,  in  opposition  to  his 
appointment  as  Chief-Justice.  Oliver  Ellsworth  remarks  in  a  letter 
to  Mr.  Wolcott:  "That  E.  R.  (Edward  Rutledge)  should  not  act 
at  all,  is  less  surprising  than  that  J.  R.  (John  Rutledge)  should  act 
like  the  devil.  I  wait  for  the  unravelling,  when  more  is  to  be 
known." 

But  the  composure  and  firmness  of  Washington  raised  him  above 
all  party  and  personal  considerations.*  Sustained  by  the  majestic 
strength  of  his  own  character,  and  relying  with  a  just  confidence 
upon  the  suggestions  of  his  own  judgment  and  the  instincts  of  his 
own  noble  nature,  he  stood  unmoved  amid  the  war  of  faction,  and 
was  deaf  alike  to  the  dark  hints,  and  the  open  remonstrances,  of 
those  who  desired  to  defeat  the  nomination.  Without  a  moment's 
hesitation,  and  with  scarcely  an  intimation  of  his  purpose  to  his 
cabinet,  on  the  resignation  of  Judge  Jay,  he  tendered  to  Rutledge 
the  vacant  Chief-Justiceship.  His  letter  of  appointment  is  both 
cordial  and  respectful ;  and  bears  honorable  testimony  alike  to  the 
greatness  of  the  mind  that  conceived  it,  and  the  character  of  the  man 
to  whom  it  was  addressed.  It  bears  date  at  Philadelphia,  July  1, 
1795,  and  is  as  follows  : 

"  DEAR  SIR  : — Your  private  letter  of  the  18th  ultimo,  and  Mr. 
Jay's  resignation  of  the  office  of  Chief-Justice  of  the  United  States, 
both  came  to  my  hands  yesterday.  The  former  gave  me  much 
pleasure,  and  without  hesitating  a  moment,  after  knowing  you  would 
accept  the  latter,  I  directed  the  Secretary  of  State  to  make  you  an 

*  President  Adams  very  complacently  contrasts  his  own  policy  in  regard  to 
appointments  to  office  with  that  of  Washington,  In  a  letter  to  Wolcott  he  says: 
"Washington  appointed  a  multitude  of  Democrats  and  Jacobins  of  the  deepest 
dye.  I  have  been  more  cautious  in  this  respect"  <tc. 


180  LIVES  OP  THE  CHIEF-JUSTICES. 

official  offer  of  this  honorable  appointment ;  to  express  to  you  my 
wish  that  it  may  be  convenient  and  agreeable  to  you  to  accept  it ;  to 
intimate,  in  that  case,  my  desire,  and  the  advantages  thfit  would  attend 
your  being  in  this  city  the  first  Monday  in  August,  at  which  time 
the  next  session  of  the  Supreme  Court  will  commence  ;  and  to  inform 
you  that  your  commission  as  Chief-Justice  will  take  date  on  this 
day,  July  1st,  when  Mr.  Jay's  will  cease,  but  that  it  would  be  de- 
tained here  to  be  presented  to  you  on  your  arrival. 

"I  shall  only  add  that  the  Secretary  will  write  to  you  by  post 
aud  by  a  water  conveyance  also,  if  there  be  any  vessel  in  this  harbor 
which  will  sail  for  Charleston  in  a  few  days,  and  that  with  much 
sensibility  for  your  good  wishes,  and  an  assurance  of  the  sincerest 
esteem  and  regard,  I  am,  my  dear  sir,"  &c. 

Rutledge  accepted  the  appointment  so  handsomely  tendered,  and 
immediately  set  out  for  Philadelphia.  He  arrived  in  time  to  take 
his  seat  as  Chief-Justice  in  the  Supreme  Court  at  the  commencement 
of  the  August  term  of  the  same  year. 

In  the  mean  time  rumors  of  the  appointment  had  got  abroad,  and 
the  leading  Federalists  who  were  enlisted  in  carrying  through  the 
Jay  treaty  did  not  scruple  to  express  their  dissatisfaction.  "To 
my  astonishment,"  writes  the  Secretary  of  the  Treasury,  Wolcott, 
to  Hamilton,  July  28,  1T95  :  "To  my  astonishment  I  am  recently 
told  that  John  Rutledge  has  had  the  tender  of  the  office  of  Chief- 
Justice.  By  the  favor  of  Heaven  the  commission  is  not  tendered, 
and  now  I  presume  it  will  not  be  ;  but  how  near  ruin  and  disgrace 
has  the  country  been !"  A  sentiment  in  which  Hamilton  very  cordially 
concurred,  as  is  evident  from  his  reply  a  few  days  after :  "I  find  it 
is  true  that  John  Rutledge  has  been  invited  to  be  Chief- Justice,  but 
he  is  not  commissioned,  and  I  must  presume  he  will  not  be  after  his 
late  conduct."  Indeed  to  such  an  extent  did  party  feelings  carry 
that  uncompromising  Federalist,  Wolcott,  that  he  does  not  hesitate 
in  one  of  his  letters  to  Hamilton  to  stigmatize  Rutledge  as  "  a  dri- 
veller and  a  fool,"  and  even  to  cast  obliquely  a  reflection  on  the 
President  himself.*  Others  of  the  Federalists,  however,  were  more 

*  The  same  gentleman  characterizes  one  of  Edward  Livingston's  finest  speeches 
in  the  House  of  Representatives  as  "  rant."  The  high  terms  in  which  Chief- 
Justice  Marshall  speaks  of  Rutledge's  abilities  are  in  strong  contrast  with  the 


JOHN  RUTLEDGE.  181 

moderate  in  the  expression  of  their  opinion.  Mr.  Ellsworth,  who 
disapproved  the  appointment  merely,  remarks :  "  With  regard  to 
Mr.  Rutledgs,  it  certainly  was  difficult,  after  he  had  come,  not  to 
commission  him.  If  the  evil  is  without  remedy,  we  must,  as  in  other 
cases,  make  the  best  of  it." 

A  leading  Federal  member  of  Congress*  about  the  same  time 
writes  : — "  Many  of  the  advocates  for  the  present  measures  are  hurt 
by  Mr.  Rutledge's  appointment,  and  are  unable  to  account  for  it, 
but  impute  it  to  want  of  information  of  his  hostility  to  the  govern- 
ment, or  some  hidden  cause  which  justifies  the  measure.  We  shall 
be  loth  to  find  that  faction  is  to  be  courted  at  so  great  a  sacrifice  of 
consistency."  Remarks  like  these,  from  comparatively  moderate 
men,  alike  unjust  to  the  motives  of  the  President,  and  to  the  charac- 
ter of  Judge  Rutledge,  will  serve  to  show  the  state  of  party  feeling 
at  the  time.  It  must  be  added  that  the  appointment  had  not  been 
made  in  consequence  of  a  "  want  of  information."  Rutledge's  posi- 
tion in  regard  to  the  treaty  was  well  known  ;  indeed  it  is  said  that 
Washington  had  from  the  outset  fully  weighed  the  objections  that 
would  be  made,  had  anticipated  the  opposition  of  members  of  his 
cabinet,  and  therefore  had  given  them  no  intimation  of  his  inten- 
tions. He  certainly  could  not  have  anticipated  the  extraordinary 
course  subsequently  taken  by  those  claiming  to  be  the  peculiar 
friends  of  his  administration  in  the  Senate,  and  who  undertook  to 
correct. his  error,  by  refusing  to  confirm  the  nomination. 

The  newspapers  of  the  day  in  the  Federal  interest,  in  like  manner, 
censured  the  appointment  in  the  strongest  terms.  Rutledge's  oppo- 
sition to  the  Jay  treaty  was  no  secret.  It  was  a  public,  bold,  and 
energetic  opposition,  and  from  the  character  and  standing  of  the 
man,  it  attracted  the  attention  of  the  whole  country.  About  the 
time  his  appointment  as  Chief-Justice  became  known,  the  news 
was  received  at  the  North  of  a  large  and  enthusiastic  meeting  held 
at  Charleston,  July  16,  1795,  to  denounce  the  treaty.  General 
Gadsden,  Judge  Mathews,  and  other  eminent  citizens  took  the  lead 

petulant  and  contemptuous  language  ofWolcott    He  call  him  "a  gentleman 
of  vigor  and  talents :"  a  gentleman  of  great  talents  and  decision,"  Ac.    See 
1  Marshall's  Washington,  p.  72-297. 
*  Chauncey  Goodrich. 


182          ,  LIVES  OF  THE  CHIEF-JUSTICES. 

at  this  meeting,  and  among  others  Rutledge  addressed  it  with  more 
than  his  usual  animation  and  vehemence  in  condemnation  of  the 
treaty.*  A  pretended  report  of  this  speech  found  its  way  into  the 
papers,  and  some  expressions  in  it  were  criticised  with  great  severity. 
Nor  was  this  all.  There  were  those  who  did  not  hesitate,  under  the 
protection  of  anonymous  newspaper  publications,  to  attack  not  only 
the  political,  but  the  private  character  of  the  Chief-Justice.  In  the 
"Columbian  Centinel,"  a  Federal  paper  published  at  Boston,  an 
anonymous  letter  appeared,  August  26,  1195,  under  the  signature 
of  "  A  real  Republican,"  addressed  to  Judge  Rutledge,  and  filled  with 
the  most  bitter  and  violent  denunciation.  This  letter  alludes  to  his 
"mounting  a  hogshead,  haranguing  a  mob  assembled  purposely  to 
reprobate  the  treaty  and  insult  the  Executive  of  the  United  States." 
In  regard  to  his  office  of  Chief-Justice,  the  writer  very  considerately 
advises  him,  "if  he  would  save  himself  from  disgrace,"  to  decline 
the  appointment.  After  some  severe,  and  even  savage,  comments 
upon  his  pecuniary  situation  and  financial  embarrassments,  the  author 
of  this  letter,  apparently  stimulated  by  his  own  passions  to  redoubled 
virulence,  insinuates,  "from  common  report,"  charges  against  Rut- 
ledge's  morals  and  habits  too  gross  to  be  here  repeated.  An  able 
and  candid  vindication  by  "  a  South  Carolinian,"  who  describes  him- 
self as  differing  from  the  Chief-Justice  in  opinion  upon  the  treaty, 
appeared,  a  few  days  after,  in  the  same  paper.  If  Judge  Rutledge 
is  embarrassed  in  his  affairs,  the  writer  says,  it  is  because  his  fortune 
had  been  freely  sacrificed  in  the  service  of  his  country  ;  but  the 
Constitution  does  not  demand  fortune  as  a  qualification  for  the  Chief- 
Justiceship.  The  great  legal  ability,  and  the  eminent  fitness  of 
Judge  Rutledge  for  the  office,  are  dwelt  upon  with  force  and  becoming 

*  It  was  in  reference  to  this  speech,  doubtless,  that  his  name  is  mentioned  in 
the  "  elegant  lines  "  (as  they  are  called  by  a  Federal  newspaper  of  the  day)  which 
introduce  a  summing  up,  or  peroration  of  "  the  Echo,"  published  at  the  time  in 
the  Connecticut  "  Courant,"  commencing  thus : 

"  Oh,  Washington !  how  stands  thy  dauntless  breast  ? 

Do  scenes  like  these  disturb  thy  mighty  rest? 

Though  Charleston  mob,  like  lice  in  Egypt,  swarms ; 

Though  RUTLEDGE  rages,  and  though  PINCKNEY  storms ; 

Though  thieves  and  LIVINGSTONS  with  patriot  ire 

Commit  the  accursed  paper  to  the  fire,"  &c.,  &c. 


JOHN  RUTLEDGE.  ^33 

dignity.  It  is  but  justice  also  to  add  that  while  the  writer  assumes 
that  "his  private  character  has  nothing  to  do  with  his  official  up- 
rightness," yet  he  indignantly  remarks,  "  even  that  defies  the  tongue 
of  calumny,  although  '  a  Real  Republican '  would  hint  at,  he  says  not 
what,  to  excite  a  suspicion  against  it."* 

These  attacks,  however,  as  is  usual  in  such  cases,  appear  to  have 
produced  very  little  or  no  impression.  Nor  did  they  operate  in  that 
quarter  toward  which  perhaps  they  were  more  especially  directed — 
the  mind  of  the  President.  The  confidence  of  Washington  seems  to 
have  continued  unabated.  During  Rutledge's  stay  in  Philadelphia, 
at  the  August  session  of  the  Supreme  Court,  he  was  invited  to  dine 
with  the  President ;  and  this  circumstance  is  mentioned  even  by 
the  "  Ceutinel"as  "evincive  of  cordiality  between  these  two  distin- 
guished characters,  notwithstanding  any  difference  of  political  senti- 
ment between  them."  But  a  stronger  evidence  that  the  mind  of 
Washington  was  not  influenced  by  these  combined  assaults,  and  that 
his  confidence  in  the  fitness  and  capacity  of  the  Chief-Justice  re- 
mained unshaken,  is  found  in  the  fact  that  notwithstanding  this  out- 
side pressure,  he  resolutely  adhered  to  his  original  purpose,  and  on 
the  opening  of  Congress  sent  in  the  name  of  Judge  Rutledge  to  the 
Senate  for  confirmation  in  the  office  of  Chief-Justice. 

Chief-Justice  Rutledge  presided  in  the  Supreme  Court  at  the 
August  term,  1195.  There  are  only  two  reported  cases  at  this 
term.  In  the  decision  of  both  of  them  the  Chief-Justice  took  part, 
but  in  neither  of  them  does  he  assign  the  reasons  upon  which  his 
judgment  is  based.  Each  of  these  cases  involved  a  question  of  juris- 
diction. The  first  f  was  a  motion  for  a  prohibition  to  the  District 
Court  of  Pennsylvania,  restraining  that  Court  from  assuming  jurisdic- 
tion in  the  case  of  a  libel  filed  for  damages  against  the  Cassius,  an 
armed  vessel  belonging  to  the  French  republic,  which  had  captured 
an  American  vessel  on  the  high  seas.  The  vessel  which  had  been 
captured  by  the  Cassius  had  not  been  brought  within  the  jurisdic- 

*  The  reply  to  this  vindication  in  the  "  Centinel"  of  Sept.  6,  1795,  seems  to 
disclose  the  real  motive  of  this  personal  attack  on  Rutledge.  It  evidently  came 
from  a  warm  and  indiscreet  friend  of  Jay,  of  whom  Rutledge  was  Eaid  to  have 
spoken  very  harshly  in  his  Charleston  speech. 

t  United  States  t>«.  Peters,  District  Judge,  3  Dallas,  120. 


184  LIVES  OF  THE  CHIEF-JUSTICES. 

tion  of  the  United  States  ;  but  had  been  sent  to  St.  Domingo  and 
condemned  there  as  a  prize.  The  question,  argued  by  Mr.  Dallas  in 
support  of  the  motion,  was  whether  under  such  circumstances  the 
District  Court  had  cognizance  of  the  matter.  In  granting  the  motion 
the  Chief- Justice  delivers  his  opinion  in  his  usual  terse  and  laconic 
style,  stating  simply  the  conclusion  arrived  at  without  assigning  any 
reason  for  the  decision.  "  We  have  consulted  together  on  this  mo- 
tion, and  though  a  difference  of  sentiment  exists,  a  majority  of  the 
Court  are  clearly  of  the  opinion  that  the  motion  ought  to  be  granted. 
Therefore  let  a  prohibition  issue."* 

A  more  important  question  was  brought  before  the  Court  in  the 
case  of  Talbot  vs.  Jansenf  which  was  argued  at  the  same  term. 

A  brief  statement  of  the  facts  will  be  necessary  to  show  the 
points  at  issue  in  this  interesting  controversy.  Ballard,  an  Ame- 
rican citizen,  was  in  command  of  a  vessel  called  L'  Ami  de  la 
Liberte,  pretending  to  be  a  French  cruiser,  but  which  had  been 
illegally  fitted  out  in  the  United  States.  Talbot,  also  an  American 
citizen,  but  who  produced  French  naturalization  papers,  was  in  com- 
mand of  another  armed  vessel  called  IS  Ami  de  la  point  a  Petre, 
sailing  under  a  French  commission.  Ballard  captured  a  Dutch  ves- 
sel, and  being  soon  after  joined  by  Talbot,  the  latter  took  possession 
of  the  prize,  and  in  company  with  Ballard,  both  having  put  prize 
masters  on  board,  brought  the  captured  vessel  into  the  port  of 
Charleston.  The  Dutch  captain  claimed  restitution,  which  the  Dis- 
trict Court  of  Charleston  decreed,  and  the  Circuit  Court  of  Charles- 
ton confirmed  the  decree.  From  this  decision  Talbot,  the  captain 
of  the  French  vessel,  appealed.  The  argument  turned  mainly  upon 
the  questions  whether  the  capture  under  such  circumstances  was  in 

*  The  case  of  "  The  Cassias  "  has  been,  subsequently,  approved  in  the  Supreme 
Court  by  the  decision  in  the  case  of  "  The  Invincible,"  1  Wheaton,  238  ;  and  also 
in  the  opinion  pronounced  by  Justice  Story  in  the  case  of  "  The  Santissima  Trini- 
dad," 7  Wheaton,  288.  The  seizure  of  "  The  Cassius  "  was  made  an  accusation 
against  the  American  government  by  Talleyrand,  in  his  correspondence  with 
the  American  envoys,  Messrs.  Marshall,  Pinckney,  and  Gerry.  In  his  reply  to 
Talleyrand,  General  Marshall  very  clearly  states  the  case  on  the  other  side ;  and 
refers  to  the  decision  of  the  Supreme  Court,  refusing  to  take  jurisdiction,  as  a 
complete  vindication  of  the  United  States.  See  American  State  Papers. 

t  3  Dallas'  Reports,  133. 


JOHN  RUTLEDGE.  Jg5 

violation  of  the  treaty  with  Holland  ;  and  if  so  whether  the  United 
States  courts  could  take  jurisdiction  of  the  case  consistently  with 
the  treaty  between  America  and  France.  But  another  question  of 
the  gravest  character  and  highest  importance  was  also  raised  and 
discussed  for  the  first  time  in  the  Federal  courts — a  question  upon 
which  the  judicial  mind  remained  unsettled  for  years  subsequently, 
and  which  in  some  respects  may  still  be  considered  a  questio  vez&ta 
— namely,  whether  the  common  law  doctrine  as  to  allegiance  and 
expatriation  was  to  be  regarded  in  America  as  a  rule  of  muni- 
cipal law.  It  had  been  made  a  point  in  the  argument  against  the 
legality  of  the  capture,  that  Talbot's  French  naturalization  was  un- 
availing, and  that  he  remained  still  a  citizen  of  the  United  States. 
This,  of  course,  opened  the  way  for  a  full  discussion  of  the  doctrine  of 
perpetual  allegiance,  but  no  decision  was  pronounced  upon  it,  the 
case  being  finally  disposed  of  upon  other  principles.  The  question, 
however,  was  considered  by  Judges  Paterson  and  Iredell  in  their 
carefully  written  opinions,  the  latter  of  whom  seemed  inclined  to 
hold  the  doctrine  subsequently  laid  down  by  Judge  Ellsworth,  and 
applied  with  such  strictness  in  the  trial  of  "Williams,*  that  a  citizen 
does  not  possess  the  right  of  voluntary  expatriation  without  the  per- 
mission of  his  own  government.  Judge  Rutledge  carefully  avoided 
expressing  an  opinion  on  the  subject.  "  The  doctrine  of  expatria- 
tion is  certainly  of  great  magnitude,"  he  remarks,  "  but  it  is  not 
necessary  to  give  an  opinion  upon  it  in  the  present  cause,  there  being 
no  proof  that  Captain  Talbot's  admission  as  a  citizen  of  the  French 
republic,  was  with  a  view  to  relinquish  his  native  country  ;  and  a 
man  may  at  the  same  time  enjoy  the  rights  of  citizenship  under  two 
governments."  Upon  the  merits  of  the  case  the  Chief-Justice  con- 
curred entirely  with  his  associates  in  sustaining  the  decree  of  the 
District  Court,  which  awarded  the  Dutch  vessel  to  its  rightful  owners. 
In  pronouncing  the  judgment  of  the  court,  which  he  does  with  more 
than  his  usual  economy  of  language,  he  disposes  of  the  pretensions 
of  Capt.  Talbot  in  the  following  decisive  and  summary  manner: 
"  The  capture  was  a  violation  of  the  law  of  nations,  and  of  the  treaty 
with  Holland.  The  Court  has  a  clear  jurisdiction  of  the  cause. 

*  See  remarks  on  the  trial  of  Williams  in  subsequent  sketch  of  Judge  Ellsworth. 


186  LIVES   OF  THE  CHIEF-JUSTICES. 

Every  motive  of  good  faith  and  justice  must  induce  us  to  concur 
with  the  Circuit  Court  in  awarding  restitution." 

The  dignified  bearing  of  Chief-Justice  Rutledge  on  the  bench  has 
been  spoken  of,  on  the  authority  of  traditionary  accounts,  in  the 
highest  terms  of  praise.  It  was  graceful  and  courtly,  though  tinged, 
it  is  said,  with  that  haughtiness  which  in  later  years  had  marked 
him.  In  these  closing  scenes  of  his  judicial  career,  and  of  his  public 
life,  it  was  remarked  that  his  natural  impetuosity  had  been  subdued 
by  the  approach  of  age,  the  weight  of  long  public  service,  and  the 
anxiety  of  a  position,  the  intrigues  of  which,  he  soon  became  con- 
scious, admonished  him  was  but  too  insecure.* 

The  appointment  of  Rutledge  had  been  made  during  the  recess  of 
Congress.  He  was  yet  to  pass  the  ordeal  of  the  Senate.  The  Jay 
treaty  had  been  approved  by  the  President,  and  there  seemed  now  no 
controlling  reason  for  opposing  his  confirmation,  unless,  perhaps,  on 
account  of  the  affirmative  action  still  required  of  Congress  to  carry 
out  some  of  the  provisions  of  the  treaty.  Nevertheless  so  great  was 
the  chagrin  of  the  dominant  party  in  the  Senate,  that  notwithstand- 
ing their  avowed  respect  for  the  President,  they  determined  to  carry 
out  the  extraordinary  measure  of  opposing  him  in  this  nomination. 
The  subject  was  entertained  among  prominent  men  some  tune  before 
it  was  acted  upon  by  the  Senate,  as  is  evident  from  a  letter  of  the 
elder  Wolcott,  dated  Nov.  23,  1795.  "  I  hope  we  may  rely  upon 
the  firmness  of  the  Senate,"  he  says.  "  The  virtuous  motives  which 
have  induced  the  treating  with  regard  men  who  avow  and  act  upon 
principles  inconsistent  with  the  preservation  of  order,  to  influence 
them  to  a  more  just  conduct,  have  been  and  will  be  ineffectual.  I 
hope,  therefore,  however  disagreeable  it  may  be  to  imply  an  error  of 
judgment  in  the  President  in  appointing  Mr.  Rutledge,  that  he  will 
not  be  confirmed  in  his  office." 

The  hope  thus  expressed  was  destined  to  no  disappointment.  On 
the  15th  December,  1795,  the  Senate,  by  a  small  majority,  refused  to 
confirm  the  nomination,  and  thus  the  "  error  in  judgment "  of  the 
President  was  corrected  by  his  own  professed  personal  and  political 
friends.  It  was  well  understood  that  the  vote  of  the  Senate  was 

*  Notes  to  Wharton's  State  Trials. 


JOHN  RUTLEDGE.  137- 

governed  mainly  by  political  considerations.*  This  is  very  clearly 
evident  from  an  expression  in  a  letter  from  Jefferson  to  Madison 
written  at  the  time.  "  The  rejection  of  Rutledge  by  the  Senate," 
he  says,  "  is  a  bold  thing,  because  they  cannot  pretend  any  objection 
to  him  but  his  disapprobation  of  the  treaty." 

But,  whatever  may  have  been  the  reasons  and  motives  which  in- 
fluenced the  action  of  the  Senate,  the  rejection  of  Rutledge  was  in 
many  respects  fortunate  both  for  himself  and  his  friends.  Even  if 
he  had  been  confirmed,  he  would  probably  never  again  have  taken 
his  seat  on  the  bench.  For,  while  his  nomination  was  yet  pending 
in  the  Senate,  that  strong  and  vigorous  mind  was  becoming  unsettled, 
and  the  light  of  that  brilliant  intellect  was  fading  into  darkness  and 
night.  The  Senate  had  scarcely  set  its  seal  of  disapprobation  upon 
the  nomination  of  Rutledge  when  rumors  reached  Philadelphia  that 
he  was  becoming  insane.  "The  fact,"  says  a  correspondent  from 
that  city,  "  is  daily  corroborated.  I  have  it  from  authority  which 
mingles  the  tears  of  pity  and  commiseration." 

The  malady  which  prostrated  Rutledge  and  overclouded  the  latter 
years  of  his  life  was  in  a  measure  the  result  of  diseases  brought  upon 
him  many  years  before  by  sufferings  and  exposure  in  the  service  of 
his  country.  I  am  assured  by  a  connection  of  the  family  that  the 
mother,  and  wife  of  Rutledge  were  frequently  heard  to  say  that  a 
fever  taken  at  an  unhealthy  season  of  the  year,  in  a  swampy  district 
of  country,  at  the  time  the  British  troops  were  overrunning  the 
colony,  had  laid  the  seeds  of  that  disorder  which  broke  down  his 
constitution  while  he  was  yet  in  the  prime  of  life,  and  from  which  he 
never  recovered. 

Just  before  his  rejection  by  the  Senate — though  that  body  does 
not  seem  to  have  had  at  the  time  of  the  vote  any  definite  knowledge 
of  the  true  state  of  the  case— he  experienced  a  renewed  and  violent 
attack  of  sickness  which  it  appears  ended  in  insanity.  A  letter  from 
Charleston,  under  date  of  December  1st,  1795,  conveys  the  first  inti- 

*  Hamilton  hints  at  other  reasons,  in  a  letter  to  Rufus  King,  so  lato  as  Decem- 
ber 14th,  and  speaks  of  the  reports  which  had  been  circulated  to  Mr.  Rutledge'a 
discredit.  "  If  there  were  nothing  in  the  case,"  he  remarks,  '•  but  his  imprudent 
sally  upon  a  certain  occasion,  I  should  think  the  reasons  for  letting  him  pass  would 
outweigh  those  for  opposing  his  passage."— Hamilton's  Works,  vol.  VI.  p.  7G. 


188  LIVES  OF  THE  CHIEF-JUSTICES. 

mation  of  his  illness  :  "  By  a  gentleman  who  left  Camden  on  Wed- 
nesday last,  we  are  informed  that  the  Chief-Justice  of  the  United 
States  left  that  place  on  the  Saturday  preceding  on  his  way  to  hold 
the  Circuit  Court  in  North  Carolina  ;  that  on  the  evening  of  that 
day  he  reached  Evans's  tavern  on  Lynch  Creek,  whicli  he  left  the  next 
morning.  A  few  hours  after  he  was  taken  so  unwell  that  he  was 
obliged  to  return  to  Mr.  Evans'.  When  the  account  came  away  he 
was  so  much  indisposed  as  to  make  it  doubtful  whether  he  would  be 
able  to  proceed  in  time  to  hold  the  court  in  North  Carolina."* 

Three  days  afterwards,  a  paragraph  in  the  same  paper  announces : 
"  By  a  southern  paper  we  learn  that  Judge  Rutledge  is  so  disordered 
in  his  intellect,  as  to  render  it  necessary  to  have  him  constantly 
guarded,  he  having  threatened  and  even  attempted  his  own  destruc- 
tion.'^ 

And  here  the  scene  closes  upon  the  life  of  Rutledge.  Nothing 
remains  to  be  added.  The  remnant  of  his  life  is  a  blank  and  a  void. 
It  was  passed  in  the  fluctuations  of  a  disease  which  prostrated  alike 
body  and  mind.  The  strong  man  had  fallen,  and  the  light  of  a  great 
intellect  had  become  dimmed.  To  borrow  the  striking  imagery  of 
oriental  imagination,  the  silver  cord  was  loosened,  the  pitcher  broken 
at  the  fountain,  and  the  wheel  broken  at  the  cistern.  He  died  in  the 
summer  of  1800,  about  six  mouths  after  the  decease  of  his  brother, 
Gov.  Edward  Rutledge,  and  was  interred  in  St.  Michael's  church- 
yard, in  his  native  city  of  Charleston. 

Mr.  Rutledge  was  married  in  the  year  1763,  to  Miss  Elizabeth 
Grinikd.  He  left  a  family  of  five  sons  and  two  daughters,  all  of 
whom  are  now  dead.  His  descendants,  however,  are  numerous,  many 
of  them  residing  in  the  city  of  Charleston.  His  eldest  son,  John 
Rutledge,  jun.,  a  gentleman  of  fine  talents  and  effective  eloquence,  was 
a  leading  member  of  Congress,  during  a  part  of  the  administrations  of 
Adams  and  Jefferson  ;  retaining  his  place  in  that  body  as  long  as  the 
Federal  party  was  in  the  ascendancy  in  South  Carolina.^ 

*  Boston  "  Centinel,"  January  2, 1796. 

t  The  "  Aurora  "  announces  on  the  authority  of  a  letter  from  a  gentleman  of 
Charleston,  of  Dec.  31,  1795,  that  "  Chief-Justice  Rutledge,  on  Saturday  last,  at- 
tempted to  drown  himself,  but  was  taken  out  of  the  water  by  some  negroes.  It 
is  said  he  has  discovered  symptoms  of  derangement  for  some  weeks  past." 

t  He  took  a  prominent  part  in  the  discussions  of  that  body,  and  particularly 


JOHN    RUTLEDGE.  139 

There  were  many  traits  in  the  character  of  Judge  Rutledge  calcu- 
lated to  attract  the  popular  admiration.  He  was  bold,  open,  frank 
and  ardent  in  temper  and  disposition,  and  was  gifted  with  those  cap- 
tivating conversational  powers  which  rarely  fail  to  find  their 
way  to  the  sympathies  and  hearts  of  his  fellows.  But  independent 
of  this  he  possessed  many  of  those  higher  and  more  sterling  quali- 
ties which  stamp  the  man  of  real  superiority  of  mind.  I  am 
doing  no  injustice  to  others  in  claiming  for  Rutledge  a  place  among 
the  very  ablest  and  greatest  of  the  revolutionary  leaders.*  He  ex- 
hibited abilities  of  the  most  striking  character  in  every  position  in 
which  he  was  placed.  He  was  eminent,  not  merely  as  an  orator — 
in  the  eloquence  of  language  and  of  action — but  as  a  statesman,  a 
legislator,  a  jurist.  His  administrative  talents  were  of  the  first 
order.  He  was  a  man  of  action,  of  energy,  of  resources — a  man  of 
a  powerful  grasp  of  intellect,  of  liberal  views,  and  of  original  impres- 
sions. He  possessed  the  qualities  of  decision  and  firmness  in  a  re- 
markable degree  and  in  their  best  sense,  and  he  was  endowed  with  an 
indomitable  will  which  adversity  could  not  shake,  nor  misfortune 
crush.  The  courage  of  Rutledge  was  of  the  highest  character  ;  he 
exhibited  every  degree  of  it — from  the  courage  of  the  grenadier  to 
that  of  the  statesman — from  mere  physical  composure  and  intrepidity 
in  the  midst  of  danger,  to  that  more  exalted  species  of  courage 
which  shrinks  not  to  incur  a  responsibility,  or  boldly  avow  an  un- 
popular principle  in  the  face  of  the  world.  His  public  career  is  full 
of  instances  of  courageous  action  and  fearless  independence.  No 
public  man  of  the  times  acted  under  less  restraint  from  the  shackles 
of  party.  His  independence  was  not  a  mere  semblance,  but  a  reality 
— a  full,  genuine,  unfettered  independence  of  thought,  word,  and 
action.  He  scorned  alike  to  conceal  an  opinion,  and  to  abandon  a 
principle,  no  matter  at  what  cost  to  himself,  or  what  personal  sacri- 
fice. 

If  to  these  superior  qualities  were  added  some  which  may  be  sup- 
distinguished  himself  in  the  celebrated  debates  on  the  change  of  the  judiciary  sys- 
tem in  January,  1802.  He  also  participated  effectively  in  the  animated  discus- 
sions on  the  extradition  of  Nash,  in  the  year  1800. 

*  «  He  was  the  soul  of  every  council  and  enterprise."  says  an  intelligent  gen- 
tleman of  his  native  State  in  a  letter  now  before  me,  "  and  his  energy  and  genius 
went  far  in  the  conduct  of  the  war  in  this  section  of  the  country." 


190  LIVES  OF  THE  CHIEF-JUSTICES. 

posed  to  detract  in  a  measure  from  his  greatness,  it  merely  proves 
the  general  imperfection  of  all  human  excellence.  If  it  be  true  that 
he  was  proud  and  haughty,  imperious  in  manner,  and  hasty  and 
obstinate  in  temper — if  it  be  true  even,  as  his  enemies  insinuated, 
that  he  was  not  entirely  exempt  from  those  frailties  which  social 
custom  in  his  day  tolerated,  if  it  did  not  encourage, — it  affords  but 
another  evidence  of  the  fact  which  all  history  demonstrates  and  ex- 
perience confirms,  that  mankind  furnish  few,  if  any,  examples  of 
perfect  character.  But  there  was  in  Rutledge  so  much  of  real  supe- 
riority and  genuine  greatness,  that  these  imperfections,  though 
perhaps  they  ought  not  to  be  entirely  overlooked,  may  be  passed  by  in 
silence.  To  the  American  people,  and  especially  the  people  of  his  own 
State,  he  must  always  appear,  as  he  appeared  to  General  Greene, 
"  one  of  the  first  characters "  in  our  annals.  Such  a  distinction  he 
honorably  and  nobly  won,  and  surely  no  one  better  deserves  to  wear 
it  than  he. 

In  the  hall  of  the  Supreme  Court  at  the  Capitol  in  Washington 
may  be  seen,  upon  their  marble  pedestals,  the  busts  of  Jay,  of  Ells- 
worth, and  of  Marshall.  The  eye  of  the  stranger  naturally  seeks  the 
bust  of  the  distinguished  Carolinian  also,  in  that  august  tribunal  over 
which  he  too,  though  for  a  brief  period,  presided  ; — but  it  seeks 
it  in  vain.  No  product  of  the  sculptor's  chisel,  amid  that  silent  but 
impressive  marble  group,  recalls  the  memory  of  John  Rutledge.  And 
the  thought  naturally  arises  in  the  mind,  why  is  it  that  his  place  is 
vacant  ?  Surely  there  might  be  found  at  least  some  niche  in  the  ju- 
dicial temple  by  the  side  of  his  predecessor,  and  his  successors,  on 
the  bench,  for  the  second  Chief-Justice  of  the  United  States. 


OLIYEE   ELLSWORTH. 


OLIVER  ELLSWORTH. 


OLIVER  ELLSWORTH  was  a  Senator  in  Congress  from  the  State  of 
Connecticut  at  the  time  the  Senate  refused  to  confirm  Mr.  Rutledge 
in  the  office  of  Chief-Justice.  As  a  member  of  the  Federal  party  he 
of  course  contributed  to  defeat  the  nomination  of  his  predecessor  ;  but 
no  one  has  ventured  to  question  the  purity  of  motive  which  prompted 
his  action  on  that  occasion.  From  his  known  reluctance  to  accept 
the  vacant  place,  it  is  probable  that  he  himself  was  the  last  member 
of  the  Senate  who  could  have  anticipated  that  the  judicial  robe  was 
about  to  fall  from  Judge  Rutledge's  shoulders  on  his  own. 

Chief-Justice  Ellsworth  brought  to  that  high  tribunal,  over  which, 
for  a  brief  period,  he  presided,  a  valuable  experience  both  as  a  lawyer 
and  a  judge.  Called  to  the  bar  a  few  years  previous  to  the  revolution, 
he  had  attained  a  respectable  professional  position  before  his  business 
was  interrupted  by  those  great  political  events  which  summoned  him 
into  the  public  service  ;  and  when,  at  the  close  of  the  revolution,  ho 
returned  to  his  native  State,  it  was  to  take  his  seat  upon  the  bench 
of  the  Connecticut  Superior  Courts,  in  which  station  he  continued  un- 
til the  Federal  Convention,  and  the  organization  of  the  new  govern- 
ment opened  to  him  a  wider  and  more  extended  field  of  usefulness. 
He  came  to  the  bench  of  the  Federal  Courts,  therefore,  under  the 
most  favorable  auspices  ;  for  he  added  the  experience  of  the  states- 
man to  that  of  the  advocate  and  the  jurist.  He  possessed,  in  a  felici- 
tous combination,  remarks  a  very  judicious  writer,  "  those  qualities  which 
make  up  a  great  judge,  and  which  afterwards,  through  a  much  longer 
career,  were  displayed  by  his  eminent  successor.  His  mind,  naturally 
13 


194  LIVES  OF  THE  CHIEF-JUSTICES. 

exact  and  comprehensive,  had  been  disciplined  by  severe  study  and  by 
the  exercises  of  an  extended  practice.  He  went  into  public  life  just 
at  that  period,  when  the  intellect,  not  yet  so  settled  in  the  professional 
mold  as  to  lose  its  natural  malleability,  is  able  to  adapt  itself  to  its 
new  and  more  liberal  pursuits  with  tenacity  and  precision,  but  without 
the  stiffness  attendant  on  long  service  at  the  bar."  *  He  remained,  it 
is  true,  but  a  few  years  on  the  bench  of  the  Supreme  Court ;  but,  like 
his  predecessor,  Jay,  he  retired  with  honor,  and  left  the  impress  of 
his  mind  upon  the  early  history  of  the  federal  judiciary. 

I  have  not  been  able  to  collect  materials  for  any  very  detailed 
account  of  the  early  years  of  Mr.  Ellsworth's  life.  In  this  re- 
spect, indeed,  he  has  but  little  the  advantage  of  the  great  majority  of 
his  brethren  of  the  old  Supreme  Court,  of  whom  scarcely  a  notice  re- 
mains. Nor,  perhaps,  could  this  be  expected.  The  life  of  a  plain 
New  England  lawyer  must  have  glided  on  smoothly  and  quietly 
enough  until  broken  in  upon  by  the  stormy  scenes  of  the'  revolution : 
and  whatever  of  local  interest  may  have  attached  to  it,  we  could 
scarcely  hope,  even  were  it  possible  to  retrace  the  record,  to  meet 
with  many  of  those  personal  recollections  which  serve  at  once  to  illus- 
trate the  character,  and  to  indicate  the  temper  and  talents  of  the 
future  judge.  Nor  should  we  expect  to  find  in  these  earlier  years  of 
his  life  a  narrative  replete  with  those  striking  incidents  or  great  enter- 
prises, which  sometimes  sparkle  on  the  page  of  biography,  and  never 
fail  to  attract  the  public  gaze.  There  is  nothing  of  this  in  the  early 
history  of  Oliver  Ellsworth.  Indeed,  that  history  may  be  said  to 
commence  with  his  appointment  to  the  Continental  Congress  in  1771. 
With  little  to  interest,  and  nothing  to  excite  previous  to  this  period,  we 
shall,  thenceforth,  on  every  hand,  encounter  interesting  traces  of  the 
labors  a'nd  services  of  the  pains-taking  and  judiciou;  :ta''esman,  and 
the  discreet  and  careful  judge,  in  the  various  departajp^crf  of  civil  life 
which  he  filled,  legislative,  diplomatic,  and  judicial.  From  this  point 
then  I  shall  take  up  the  narrative  ;  first,  however,  presenting  the 
reader  with  a  summary  of  the  earlier  years  of  his  life,  as  it  is  sketched 
by  the  graceful  pen  of  one  who  seems  to  have  thoroughly  understood 
and  appreciated  the  character  of  his  subject,  f 

*  Notes  to  Wharton's  Am.  State  Trials,  p.  37. 

t  From  an  original  memoir  of  Chief-Justice  Ellsworth,  published  in  the  Anar 


OLIVER  ELLSWORTH.  195 

"  Oliver  Ellsworth  was  born  at  Windsor,  a  village  in  the  interior  of 
Connecticut,  April  29th,  1145,  of  respectable,  but  not  very  wealthy 
parents.  He  was  brought  up  in  the  simple,  regular,  and  frugal  mode 
of  life  which  at  that  time  universally  prevailed  throughout  the  pro- 
vince, and  which  is  still,  although  in  a  less  degree,  a  striking  charac- 
teristic of  the  domestic  manners  of  Connecticut. 

"  The  state  of  manners  and  of  education  in  New  England  about  this 
period,  was,  perhaps,  of  all  others,  the  best  calculated  to  rear  up  men 
fitted  to  struggle  through  the  toils,  the  difficulties,  and  the  dangers  of 
a  great  revolution,  without  endangering  the  safety  of  those  republican 
institutions  for  which  they  contended,  either  by  turbulent  violence,  or 
unprincipled  ambition.  A  greater  proportion  of  the  whole  population 
of  the  country  had  received  a  liberal  education,  than  was  probably  the 
case  in  any  other  part  of  the  civilized  world.  Thus,  in  addition  to  the 
number  of  men,  not,  indeed,  profoundly  learned,  but  competently  in- 
structed for  any  ordinary  purpose  of  active  life,  a  great  mass  of  gene- 
ral information  was  diffused,  and  a  universal  activity  of  mind  excited 
throughout  the  whole  community.  The  bigotry  and  fanaticism  which 
occasionally  disgraced  the  elder  puritan  settlers  had  died  away  ;  much, 
too,  of  their  rigid  virtue  and  high-toned  principle  had  gradually  decay- 
ed with  them  ;  but  enough  was  left  to  keep  up  a  very  general  regard 
to  moral  and  religious  character,  and  an  habitual  reference  to  prin- 
ciple, in  the  conduct  and  opinions  of  the  great  body  of  the  people. 
Above  all,  the  peculiar  state  of  the  country,  which  had  just  emerged 
from  the  hardships  of  a  new  and  half-peopled  colony,  while  it  excluded 
most  of  the  luxuries  and  many  of  the  refinements  of  civilized  life,  had 
a  strong  tendency  to  train  up  the  youth  in  those  habits  of  simplicity 
arid  privation,  of  personal  independence,  and  of  constant  activity  of 
mind  and  body,  which,  however  ill  the  parallel  may  accord  with  the 
magnificent  illusions  of  classical  prejudice — in  fact  constituted  the 
most  essential  part  of  that  education  which  formed  the  heroes  and 
patriots  of  republican  antiquity.  Sanctos  Mis,  horrida,  mores — tradi- 
dit  domus,  ac  veteres  imitata  Salinas. 

"  In  this  state  of  society  was  Mr.  Ellsworth's  character  formed,  and 
the  early  impressions  of  his  youth  may  be  traced  through  the  whole 

lectic  Magazine  for  1814,  Vol.  HI.  page  382,  and  republiahed  a  few  years  since  in 
Vol.  III.  American  Law  Journal. 


196  LIVES  OF  THE  CHIEF-JUSTICES. 

uniform  tenor  of  his  public  and  private  life.  His  youth  was  passed 
alternately  in  agricultural  labors,  and  in  the  elementary  studies  of  a 
liberal  education.  At  the  age  of  seventeen  he  entered  Yale  College  ; 
but  after  some  residence  there,  in  consequence  of  a  boyish  disgust 
or  irregularity,  he  removed  to  Princeton,  where  he  completed  his 
academic  course,  and  received  the  degree  of  A.B.  in  1766. 

"  His  standing  as  a  student  was  sufficiently  respectable  ;  but  he  is 
Baid  to  have  been  much  more  remarkable  for  his  shrewdness  and  adroit 
management  in  all  the  little  politics  of  the  College,  than  for  any  un- 
common proficiency  in  science  or  literature.  Within  two  or  three 
years  after  his  leaving  college,  he  was  admitted  to  the  bar  in  Connec- 
ticut, and  commenced  the  practice  of  his  profession  in  the  county  of 
Hartford.*  The  jurisprudence  of  Connecticut,  after  a  long  period  of 
darkness  and  uncertainty,  had,  a  very  short  time  before  Mr.  Ellsworth's 
entrance  upon  professional  life,  assumed  a  regular  form. 

"  The  common  law,  after  overcoming  many  doubts,  and  some  strenu- 
ous opposition,  was  fully  received  ;  a  regular  mode  of  practice,  not  very 
formal,  but  sufficiently  accurate  for  every  ordinary  purpose,  was  now 
settled  ;  and  the  decisions  of  Lord  Mansfield  and  the  other  great 
English  Judges,  who  had  introduced  light  and  order  into  the  scholastic 
refinements  and  nice  technical  distinctions  of  the  ancient  law,  and  gra- 
dually adapted  it  to  the  necessities  of  an  enlightened  age,  and  a  com- 
mercial people,  were  at  length  familiarly  cited  at  the  Connecticut  bar. 
This  amelioration  of  the  legal  system  was  accompanied  or  preceded  by 
a  corresponding  improvement  in  literature  and  taste,  and  public  speakers 

*  I  find  the  following  anecdote  related  of  his  early  practice  at  the  bar.  "  His 
father  presented  him  with  a  small  farm,  situated  in  the  south-western  corner  of 
Windsor,  and  in  the  management  of  this  and  the/ew  suits  with  which  his  acquaint- 
ances and  friends  entrusted  him,  his  ardent  and  active  mind  was  forced  for  a  time 
to  content  itself.  As  often  as  the  session  of  the  Court  occurred  at  Hartford, 
leaving  his  farm  and  revolving  his  cases  in  his  mind,  he  travelled  thither  on  foot, 
and  back  again  in  the  same  manner,  when  the  season  was  over.  Soon,  however, 
a  suit  was  committed  to  his  management,  of  trivial  importance,  indeed,  so  far  as 
concerned  the  pecuniary  interest  at  stake,  but  at  the  same  time  involving  the  de- 
cision of  a  legal  principle  of  the  deepest  moment.  Young  Oliver  proved  himself 
equal  to  the  emergency ;  and  by  the  ability  and  skill  he  exhibited  in  the  conduct 
of  the  suit,  at  once  established  his  reputation  on  a  permanent  basis,  and  he  took 
his  stand  among  the  most  promising  and  talented  of  the  younger  members  of  his 
profession  at  the  Hartford  bar. 


OLIVER  ELLSWORTH.  19f 

and  advocates  found  themselves  compelled  to  pay  a  much  greater  atten- 
tion to  correctness,  and  even  elegance,  of  language,  than  the  public  taste 
had  ever  before  required.  With  this  era  of  legal  and  intellectual 
light  Mr.  Ellsworth  commenced  his  professional  career.  He  had  not 
laid  a  very  deep  foundation  either  of  general  or  professional  learn- 
ing ;.  but  the  native  vigor  of  his  mind  supplied  every  deficiency  ;  the 
rapidity  of  his  conceptions  made  up  for  the  want  of  previous  knowl- 
edge ;  the  diligent  study  of  the  cases  which  arose  in  actual  business, 
stored  his  mind  with  principles  :  whatever  was  thus  acquired  was 
firmly  rooted  in  his  memory  ;  and  thus,  as  he  became  eminent,  he 
grew  learned. 

"  The  whole  powers  of  his  mind  were  applied  with  unrernitted 
attention  to  the  business  of  his  profession,  and  those  public  duties  in 
which  he  was  occasionally  engaged.  Capable  of  great  application, 
and  constitutionally  full  of  ardor,  he  pursued  every  object  to  which  he 
applied  himself  with  a  strong  and  constant  interest  which  never  suffer- 
ed his  mind  to  flag  or  grow  torpid  with  listless  indolence.  But  his  ardor 
was  always  under  the  guidance  of  sober  reason.  His  cold  and  color- 
less imagination  never  led  him  astray  from  the  realities  of  life  to  wanton 
in  the  gay  visions  of  fancy  ;  and  his  attention  was  seldom  attracted  by 
that  general  literary  curiosity  which  so  often  beguiles  the  man  of 
genius  away  from  his  destined  pursuit,  to  waste  his  powers  in  studies 
of  no  immediate  personal  utility.  At  the  same  time  his  unblemished 
character,  his  uniform  prudence  and  regularity  of  conduct  acquired 
him  the  general  confidence  and  respect  of  his  fellow-citizens— a  people 
in  a  remarkable  degree  attentive  to  all  the  decorum  and  decencies  of 
civilized  life.  He  very  soon  rose  into  high  reputation  and  lucrative 
practice  ;  and  before  he  had  been  long  at  the  bar  received  the  appoint- 
ment of  State's  Attorney  for  the  district  of  Hartford,  an  office  at  that 
time  of  very  considerable  emolument.  This  he  continued  to  hold  dur- 
ing the  greater  part  of  the  revolutionary  war.  From  the  very  com- 
mencement of  that  contest  he  declared  himself  resolutely  on  the  side 
of  his  country  ;  and  on  two  or  three  occasions,  when  Connecticut  was 
harrassed  by  the  incursions  of  the  enemy,  went  out  with  the  militia  of 
his  country  into  actual  servive,  more,  however,  for  the  sake  of  exam- 
ple, than  from  any  particular  inclination  to  military  life.  For  several 
sessions  in  the  years  immediately  preceding  the  declaration  of  hide- 


198  LIVES  OF  THE  CHIEF-JUSTICES. 

pendence,  he  represented  the  town  in  which  he  resided  in  the  general 
Assembly  of  the  State,  with  great  reputation,  and  took  a  large  share, 
not  only  in  the  ordinary  business  of  the  House,  but  also  in  all  those 
public  acts  and  declarations  which  were  called  forth  by  the  peculiar 
circumstances  of  the  times.  About  the  commencement  of  the  war  he 
presided  for  a  short  time  at  the  pay-table,  as  it  was  called,  or  office  of 
public  accounts  of  the  State  of  Connecticut. 

*  *  *  *  *  *  * 

"  Mr.  Ellsworth  was  now  fairly  entered  upon  his  career,  and  with  a 
character  and  talents  so  admirably  adapted  to  the  state  of  society 
around  him,  he  was  enabled,  without  trick  or  artifice,  or  the  sacrifice 
of  principle,  to  take  at  the  flood  that  tide  which  leads  to  fortune." 

Such  is  the  modest  and  unpretending  history  of  Mr.  Ellsworth's  life 
up  to  the  period  of  his  entry  upon  that  broader  theatre  of  action 
which  the  revolution  laid  open  before  him.  By  the  force  of  his 
talents  and  industry  he  had  risen  to  an  honorable  position  at  the  bar 
of  his  native  province — a  bar  which  could  boast  the  names  of  such 
men  as  Johnson,  Hosmer,  Law,  and  Huntingdon,  to  stand  side  by  side 
with  whom  might  surely  be  an  object  worthy  the  ambition  of  the  young 
aspirant  after  professional  fame.  This  Ellsworth  speedily  accomplish- 
ed, and  if  he  did  not  outstrip,  he  at  least  soon  equalled  his  older 
competitors.  His  talents  as  an  advocate  are  said  to  have  been  un- 
rivalled. He  excelled  especially  as  a  nisi  prius  lawyer,  in  the  con- 
duct and  management  of  causes,  at  the  trial  table  ; — cool,  adroit, 
cautious,  and  endowed  with  an  admirable  self-possession,  and  felicity 
of  temper,  he  came  to  the  trial  of  his  cases,  not  only  with  perfect  self- 
reliance  on  his  own  talents,  but  with  that  confidence  which  a  thorough 
knowledge  of  the  facts,  as  well  as  the  law,  and  a  careful  and  laborious 
preparation,  never  fail  to  inspire. 

It  is  stated  that  when  he  took  his  seat  in  Congress  in  1178,  he 
abandoned  a  practice  the  most  lucrative  in  Connecticut.  The  expres- 
sion, I  apprehend,  is  not  strictly  correct,  as  it  does  not  appear  that  he 
actually  abandoned  his  professional  avocations  during  the  war,  al 
though  undoubtedly  the  business  of  the  courts  in  that  State,  as  wel 
as  in  others,  was  much  impeded  at  this  period.*  Ellsworth,  like  the 

*  Tha*  Ellsworth  continued  in  the  active  practice  of  his  profession  up  to  the 


OLIVER  ELLSWORTH.  199 

rest  of  the  Connecticut  delegates,  was  not  constant  in  his  attendance 
upon  the  deliberations  of  Congress.  That  State  usually  commissioned 
seven  delegates  annually,  not  less  than  two  nor  more  than  four  of 
whom  were  to  attend  at  any  one  time  at  the  charge  of  the  State. 
The  consequence  of  this  arrangement  was,  that  the  delegates  were 
alternately  relieved  by  their  colleagues,  and  thus  were  enabled  to  re- 
turn home  at  intervals  to  attend  to  their  private  affairs  and  business 
avocations.  Though  Mr.  Ellsworth  was  commissioned  in  the  autumn 
of  lilt,  yet  he  did  not  actually  take  his  seat  until  the  8th  of  October 
of  the  following  year,  Connecticut  having  been  meanwhile  represented 
alternately  by  his  colleagues,  Roger  Sherman,  Hosmer,  A.  Adams, 
and  others. 

In  the  mean  time  he  had  been  assigned  to  the  discharge  of  a  diffi- 
cult as  well  as  delicate  duty.  On  the  very  day  when  his  name  was 
placed  on  the  commission  as  a  deputy  from  the  State  of  Connecticut 
to  Congress,  that  body  had  named  him  as  one  of  a  committee  of  five  to 
examine  into,  and  report,  the  causes  of  the  late  failure  of  the  expedition 
against  Rhode  Island.  Ellsworth,  with  two  of  his  associates,  entered 
upon  the  discharge  of  this  duty  during  the  latter  part  of  the  next  win- 
ter and  spring,  and,  having  taken  a  mass  of  testimony,  reported  the 
same  to  Congress.  Nothing,  however,  seems  to  have  been  done  be- 
yond a  mere  entry  of  the  fact  upon  the  journal  ;  perhaps  Congress 
deemed  it  a  matter  of  more  consequence  to  make  provision  for  the 
success  of  new  expeditions,  than  to  waste  its  tune  in  investigating  the 
causes  of  the  failure  of  old  ones. 

When  Ellsworth  took  his  seat  in  Congress,  in  October,  1718,  that 
body  consisted  of  about  thirty  members.  It  numbered  some  of  the 
best,  and  ablest,  and  wisest  men  whom  the  revolution  produced.  Be- 
sides Ellsworth's  colleague,  Roger  Sherman,  the  roll  of  its  members 
contained  the  names  of  Samuel  Adams,  and  Elbridge  Gerry,  of  Massa- 
chusetts ;  the  two  Morrises,  Robert  and  Gouvcrneur  ;  Dr.  Witherspoon, 
of  New  Jersey  ;  Richard  Henry  Lee,  of  Virginia  ;  Laurens,  Drayton, 
and  Mathews,  of  South  Carolina  ;  and,  soon  after,  John  Jay,  of  New 

period  of  his  appointment  as  Judge  of  the  Connecticut  Superior  Court,  is  evident 
from  the  fact  which  appears  by  the  reports,  that  several  important  cases,  in  which 
he  had  been  engaged  as  counsel,  came  before  the  Court  for  review,  Judge  Elk- 
worth,  of  course,  taking  no  part  in  the  decision. 


200  LIVES  OF  THE  CHIEF-JUSTICES. 

York.  It  was  a  grave,  discreet,  dignified  body  of  men,  and  its  de- 
liberations in  the  main  were  all  characterized  by  order,  moderation, 
firmness,  and  wisdom.  The  serious  character  of  some  of  these  deliber- 
ations would  no  doubt  provoke  idle  criticism,  if  not  ridicule,  in  our 
day.  Only  two  or  three  days  had  elapsed  after  Ellsworth  took  his 
seat,  when  he  was  called  upon  to  vote  (and  it  is  unnecessary  to  say 
that  his  vote  was  in  the  affirmative)  upon  the  following  resolutions, 
whose  stern  and  rigid  morality  attest  their  genuine  New  England 
origin. 

"  Whereas,  true  religion  and  good  morals  are  the  only  solid  founda- 
tions of  public  liberty  and  happiness  : 

"  Resolved — That  it  be,  and  it  hereby  is,  earnestly  recommended  to 
the  several  States,  to  take  the  most  effectual  measures  for  the  encour- 
agement thereof ;  and  for  the  suppressing  theatrical  entertainments, 
horse-racing,  gaming,  and  such  other  diversions  as  are  productive  of 
idleness,  dissipation,  and  a  general  depravity  of  principles  and  manners. 

"  Resolved — That  all  officers  in  the  army  of  the  United  States  be, 
and  hereby  are,  strictly  enjoined  to  see  that  the  good  and  wholesome 
rules  provided  for  the  discountenancing  of  profaneness  and  vice,  and 
the  preservation  of  morals  among  the  soldiers,  are  duly  and  punctually 
observed." 

It  may  be  added,  that  every  New  England  vote  is  found  recorded 
in  the  affirmative  ;  and  that  the  resolutions  passed  almost  unanimously, 
one  or  two  of  the  Southern  States  only  dissenting.* 

The  deliberations  of  the  Congress,  it  is  well  known,  were  secret, 
and  we  cannot,  therefore,  at  this  period  of  time,  determine  what 
may  have  been  Ellsworth's  precise  share  in  the  discussions  of  that 
body.  Enougli  appears,  however,  from  the  Journal,  to  show  that  he 
was  a  prominent  and  active,  as  well  as  an  efficient  member,  and  that 

*  Journal  of  Congress,  October  12th,  1778.  Only  a  few  days  after,  the  follow- 
ing still  more  stringent  resolutions  were  passed : 

"  WHEREAS,  frequenting  play-houses  and  theatrical  entertainments  has  a  fatal 
tendency  to  divert  the  minds  of  the  people  from  a  due  attention  to  the  means 
necessary  for  the  defence  of  their  country,  and  the  preservation  of  their  liberties  : 

"  Resolved — That  any  person  holding  an  office  under  the  United  States  who 
shall  act,  promote,  encourage,  or  attend  such  plays,  shall  be  deemed  unworthy  to 
hold  such  office,  and  shall  be  accordingly  dismissed." — Journal  of  Congress,  Oct 
16th,  1778. 


OLIVER  ELLSWORTH.  201 

his  services  were  peculiarly  valuable  upon  the  various  important  com' 
mittees  on  which  he  was  placed.  Sitting,  as  it  did,  with  closed  doors, 
Congress  exercised  the  double  functions  of  a  secret  executive  council, 
and  of  a  supreme  legislative  body,  and  even  added  to  these,  at  times, 
functions  of  a  judicial  character.  It  wielded  the  entire  sovereignty  of 
the  confederacy — the  powers  of  war  and  peace — and  gave  directions, 
through  its  committees  and  otherwise,  to  the  finances,  to  foreign  in- 
tercourse, and  all  naval  and  military  operations.  It  may  readily  be 
supposed  that  the  talents  of  Mr.  Ellsworth  were  admirably  adapted  to 
this  sphere  of  action.  Indeed,  his  great  administrative  capacity  was 
known  and  appreciated  from  the  moment  he  entered  the  halls  of  Con- 
gress. The  day  after  he  took  his  seat,  it  appears,  from  the  Journal, 
that  he  was  appointed  a  member  of  one  of  the  most  important  com- 
mittees in  the  House — that  on  marine  affairs* — a  committee  which 
acted  as  a  Board  of  Admiralty,  and  had  the  general  superintendence 
and  control  of  naval  affairs.  This  committee  continued  with  extensive 
powers  until  toward  the  close  of  the  next  year,  when  it  was  superseded 
by  the  establishment  of«a  Board  of  Admiralty. 

Ellsworth  was  also  appointed  a  member  of  the  committee  of  appeals 
soon  after  taking  his  seat  in  Congress.f  The  functions  of  this  com- 
mittee were  entirely  judicial.  It  was  vested  with  power  by  Congress 
to  hear  and  determine  appeals  brought  from  the  Admiralty  Courts 
of  the  respective  States,  in  cases  of  prize  and  captures  on  the  seas. 
The  history  of  this  committee  is  one  of  the  most  curious  parts  of 
the  history  of  the  old  Congress.  We  may  trace  in  it  distinctly  the 
very  earliest  idea  of  a  federal  judiciary,  clothed  with  appellate  powers j 
and,  were  I  writing  the  history  of  the  Supreme  Court  of  the  United 
States,  I  should  begin  at  the  period  of  the  establishment  by  the  old 
Congress  of  this  committee  of  appeals  in  Admiralty  cases.  It  is  wor- 
thy of  remark  that  the  necessity  of  an  appellate  judicial  tribunal  was 
felt  from  the  very  first  hour  of  the  confederacy,  and  even  before  the 
Declaration  of  Independence.  So  early  as  November  25th,  1775, 
Congress,  by  resolution,  recommended  to  the  several  legislatures  to 
erect  Courts  for  the  purpose  of  determining  concerning  captures,  and 
providing  that  an  appeal  should  be  allowed  to  Congress  from  such  de- 
cisions. Originally  each  appeal  was  referred  to  a  separate  committee  ; 

*  Jour,  of  Congress,  Oct.  9th,  1778.  t  Jour,  of  Congress,  Oct.  26th,  177& 


202  LIVES  OP   THE  CHIEF-JUSTICES. 

but  these  becoming  more  frequent,  a  permanent  COMMITTEE  of  APPEALS 
— that  is  to  say,  a  judicial  tribunal — was  appointed  on  the  30th 
January,  1171,  to  hear  and  determine  cases  of  appeal  from  sentences 
of  the  respective  State  Courts  in  Admiralty.  The  committee  was  al- 
ways composed  of  the  ablest  lawyers  in  the  House  ;  and  its  decisions 
in  several  of  the  earlier  cases  were  received  with  respect,  and  acqui- 
esced in  by  the  State  Courts.  A  question,  however,  soon  arose  which 
brought  with  it  a  conflict  of  jurisdiction. 

la  the  Journal  of  Congress  of  November  28th,  1778,  the  entry  ap- 
pears, "'  An  appeal  from  the  judgment  of  a  Court  of  Admiralty  for  the 
State  of  Pennsylvania,  on  a  libel,  '  Thomas  Houston  versus  Sloop 
Active/  was  lodged  with  the  secretary,  and  referred  to  the  committee 
on  appeals." 

Mr.  Ellsworth  and  his  then  associates  in  the  committee  sat  upon 
the  hearing  of  this  appeal. 

The  facts  the  case  were  these : — Gideon  Olmstead  and  others,  citi- 
zens of  Connecticut,  had  been  captured  by  the  British  and  carried  to 
Jamaica,  where  they  were  put  on  board  an  enemy's  vessel,  the  sloop 
Active,  (bound  for  New  York  with  supplies  for  the  British,)  as  navi- 
gators to  assist  in  the  management  of  the  vessel.  During  the  voyage 
they  rose  upon  the  master  and  crew  of  the  sloop,  confined  them  to  the 
cabin,  took  command  of  the  vessel,  and  steered  for  Egg  Harbor,  in 
the  State  of  New  Jersey.  When  in  sight  of  that  harbor  the  American 
brig  Convention,  belonging  to  the  State  of  Pennsylvania,  Captain 
Houston  commander,  took  possession  of  the  Active,  and  brought  her 
to  the  port  of  Philadelphia.  Captain  Houston  libelled  the  vessel  as 
lawful  prize  of  the  Convention,  and  Olmstead  for  himself  and  others, 
interposed  a  claim  to  the  cargo  and  vessel,  as  their  exclusive  prize. 
The  State  Court  of  Admiralty,  the  cause  having  been  tried  before  a 
jury,  adjudged  Olmstead  and  his  companions  entitled  to  only  one- 
fourth  part,  and  decreed  the  residue  to  the  other  claimants.  From 
this  decree  Olmstead  for  himself  and  others  appealed. 

This  appeal  was  heard  by  the  Committee  of  Appeals,  of  which  Ells- 
worth was  at  that  time  a  member,  on  the  15th  December,  1778. 
After  full  argument  of  the  case,  which,  as  will  be  seen  at  a  glance, 
was  really  one  of  no  small  importance,  involving  some  novel  and  in- 
teresting questions  of  public  and  prize  law,  the  committee  reversed  the 


OLIVER  ELLSWORTH.  203 

judgment  of  the  State  Court,' and  adjudged  that  the  Active  should  be 
condemned  as  lawful  prize  for  the  use  of  the  appellants  Olmstead  and 
his  companions,  and  remanded  the  cause  to  the  State  Court,  with 
directions  to  carry  the  decree  into  execution. 

The  Pennsylvania  Judge  refused  to  obey,  and  a  conflict  of  jurisdic- 
tion jof  course  ensued.  I  believe  it  is  the  earliest  case  on  record  of  a 
collision  between  the  judicial  authorities  of  the  confederation  and  of 
a  State.  The  result  was,  that  Congress  found  itself  without  an  ade- 
quate remedy,  and  powerless.  The  Committee  of  Appeals,  on  the 
motion  of  Olmstead's  counsel,  issued  an  injunction  to  the  Marshal  to 
restrain  him  from  paying  into  Court  the  money  arising  from  the  sale 
of  the  vessel.  The  Marshal  disregarded  the  injunction,  and  paid 
the  money  to  the  Judge,  who  gave  a  receipt  for  it.  Whereupon  the 
committee,  pursuing  the  course  dictated  by  discretion,  and  perhaps  by 
necessity,  declined  to  take  any  proceedings  for  contempt,  lest  conse- 
quences might  ensue,  as  they  declare,  "  dangerous  to  the  public  peace 
of  the  United  States  ;"  and  caused  an  entry  to  be  made  on  their 
minutes  that  they  would  proceed  no  further  in  the  matter,  nor  hear 
any  appeal,  "  until  the  authority  of  the  Court  be  so  settled  as  to  give 
full  efficacy  to  their  decrees  and  process." 

The  matter  was  subsequently  brought  before  Congress,  who  unani- 
mously— with  the  exception  of  the  State  of  Pennsylvania,  and  one  vote 
from  New  Jersey — passed  a  series  of  resolutions  vindicating  their  right 
to  the  exercise  of  this  appellate  power  over  the  State  Admiralty 
Courts.* 

*  Journal  of  Congress,  March  6th,  1779.  The  extent  of  the  power  claimed  by 
Congress  will  be  seen  by  the  following  extract  from  these  resolutions : 

"  That  no  Act  of  any  one  State  can  or  ought  to  destroy  the  right  of  appeal  to 
Congress  in  the  sense  above  declared : 

"  That  Congress  is  by  these  United  States  invested  with  the  supreme  sovereign 
power  of  war  and  peace : 

"  That  the  power  of  executing  the  law  of  nations  is  essential  to  the  sovereign 
supreme  power  of  war  and  peace : 

"That the  legality  of  all  captures  on  the  high  seas  must  be  determined  by  the 
laws  of  nations. 

"  That  the  authority  ultimately  and  finally  to  decide  on  all  matters  and  ques- 
tions touching  the  law  of  nations,  does  reside  and  is  vested  In  the  sovereign  su- 
preme power  of  war  and  peace  : 

"  That  a  control  by  appeal  is  necessary,  in  order  to  complete  a  just  and  uniform 
execution  of  the  law  of  nations." 


204  LIVES  OF  THE  CHIEF-JUSTICES. 

It  may  be  added,  that  the  jurisdiction  claimed  to  be  exercised  by 
Congress  in  these  cases  was  subsequently  fully  recognized  by  the 
Supreme  Court  of  the  United  States.  Nearly  thirty  years  after- 
wards, in  Chief-Justice  Marshall's  time,  the  decision  o*f  the  Committee 
of  Appeals  in  this  very  case  was  confirmed,  and  under  it  the  right  of 
the  original  captors,  Olmstead  and  others,  to  the  proceeds  of  the  sale 
of  the  Active  fully  established.* 

I  do  not  find  that  Ellsworth  took  part  in  any  further  proceedings 
before  the  Committee  of  Appeals  after  the  case  of  the  "  Active." 
Before  the  passage  of  the  resolutions  referred  to,  March  6th,  1779, 
vindicating  the  authority  and  jurisdiction  of  Congress  over  the  subject, 
he  had  leave  of  absence  and  returned  home.  He  was  appointed,  as 
usual,  among  the  delegates  to  Congress  from  Connecticut  for  the  en- 
suing year,  but  did  not  take  his  seat  until  the  middle  of  December. 
Soon  after,  he  was  chosen  to  his  old  position  upon  the  Committee  of 
Appeals,  in  place  of  Mr.  Paca,  of  Maryland,  who  at  that  tune  was 
absent. f  The  functions  of  this  committee,  however,  were  about  draw- 
ing to  a  close.  The  case  of  the  "Active"  had  demonstrated  the 
necessity  of  a  more  thoroughly  organized  and  vigorous  tribunal.  In 
January,  1780,  Congress  passed  resolutions  for  the  establishment  of  a 
Court  of  Appeals  in  cases  of  capture,  consisting  of  three  judges,  ap- 
pointed and  commissioned  by  Congress  ;  and  in  May  following,  the 
Court  being  then  fully  organized,  by  a  resolution  of  Congress  all  mat- 

*  United  States  vs.  Judge  Peters,  5  Cranch  Reports,  115.  The  validity  of 
the  powers  exercised  by  the  Court  of  Appeals,  under  the  articles  of  Confederation, 
and  by  the  Committee  of  Appeals  under  the  old  Continental  Congress,  had  been 
established  by  a  former  decision  of  the  Court,  made  just  before  Ellsworth  came  to 
the  bench.  In  the  case  of  Penhallow,  et.  al.  vs.  Doane's  administrators,  Feb. 
Term,  1795,  3  Dallas  Reports,  54,  Judge  Paterson,  delivering  the  opinion  of  the 
Court,  fully  sanctions  the  resolutions  of  Congress  in  the  case  of  the  "  Active," 
remarking  that  they  contain  "  a  course  of  reasoning  which,  in  my  opinion,  is 
cogent  and  conclusive."  In  the  opinion  of  that  learned  Judge  the  supreme  sov- 
ereignty claimed  to  be  exercised  by  the  Continental  Congress  even  before  the  article 
of  Confederation,  was  a  necessary  attribute,  and  grew  out  of  its  revolutionary  char- 
acter. And  he  remarks  in  a  somewhat  lofty  and  imposing  figure  of  speech—"  As 
to  war  and  peace,  and  their  necessary  incidents,  Congress,  by  the  unanimous  voice 
of  the  people,  exercised  exclusive  jurisdiction,  and  stood,  like  Jove,  amidst  the 
deities  of  old,  paramount  and  supreme." 

t  Journal  of  Congress,  January  5th,  1780. 


OLIVER  ELLSWORTH.  205 

ters  respecting  appeals  in  cases  of  capture,  then  pending  before  the 
Committee  of  Appeals,  were  transferred  to  the  new  Court.*  Under 
the  articles  of  Confederation,  adopted  by  all  the  States,  March  1st, 
1181,  this  tribunal  was  re-organized,  aud  it  continued  to  exercise  its 
functions  till  superseded  by  the  Supreme  Court  of  the  United  States. 

Mr.  .Ellsworth  remained  constantly  in  attendance  upon  Congress 
from  the  time  of  his  return  in  December,  1119,  until  the  following 
summer.  The  post  of  a  delegate  in  Congress  was  certainly  not  at  that 
time  to  be  coveted.  The  first  burst  of  enthusiasm  which  greeted  the 
opening  of  the  Revolution  had  subsided  ;  there  was  no  longer  an  eclat 
attending  a  service  in  the  councils  of  the  Confederacy  ;  the  prominent 
statesmen  who  had  set  in  motion  the  ball  of  the  revolution  were  mostly 
engaged  in  other  spheres  of  action  ;  the  great  orators  who  had  sounded 
the  first  blast  upon  the  revolutionary  trumpet  had  passed  away  ;  there 
were  no  more  laurels  to  be  won  ;  no  honors  to  be  gained  ;  nothing  to  be 
encountered  but  toil,  responsibility,  anxiety,  embarrassment.  The  dele- 
gate, setting  out  on  horseback  from  his  rural  New  England  residence, 
to  pursue  his  weary  and  tedious  journey,  perhaps  alone,  to  Philadel- 
phia, surely  exhibited  a  courage  as  lofty  and  a  temper  as  steady  as 
that  which  sustained  the  half-fed  and  half-clothed  soldier  of  Washing- 
ton in  his  winter  encampment  at  Valley  Forge.  And  it  was  fortunate 
for  the  country  that  at  this  most  perilous  crisis,  such  men  were  found  as 
Ellsworth  and  his  associates — men  of  solid,  steady,  resolute  energy 
of  purpose,  and  unshaken  firmness  of  mind,  who,  when  ambition  no 
longer  offered  her  glittering  prizes,  and  fame  held  out  no  more  her 
tempting  rewards,  could  listen  calmly  and  earnestly  to  the  voice  of 
principle  and  duty.  Without  such  men  in  council,  as  well  as  in  the 
field,  the  contest  must  have  closed  ;  for  the  darkest  hour  of  the  revo- 
lution had  arrived.  The  army  was  now  upon  the  brink  of  dissolution. 
The  Continental  treasury  was  bankrupt.  Congress,  in  despair,  had 
resolved  to  issue  no  more  bills  of  credit ;  and  the  States  were  unable 
to  advance  their  respective  quotas  of  contribution. 

It  was  at  this  moment  that  Ellsworth  again  took  his  seat  in  Con- 
gress.    A  resolution  had  just  been  adopted,  changing  the  mode  of 
supplying  the  army  from  purchases,  to  requisitions  of  specific  articles 
on  the  several  States.     As  preliminary  to  this  system  a  committee 
*  Journal  of  Congress,  May  24th,  1780. 


206  LIVES  OF    THE  CHIEF-JUSTICES. 

was  appointed  to  make  the  estimates,  and  to  introduce  every  prac- 
ticable reform  in  the  expenditures.  On  this  important  committee  Ells- 
worth was  placed  the  very  next  day  after  his  arrival.  His  labors  here 
were  no  doubt  great ;  but  as  to  their  extent  we  have  little  means 
of  judging.  The  subject  was  kept  under  deliberation  until  the  25th  of 
February,  the  committee  in  the  mean  time  having  made  their  report, 
which  Congress  adopted  substantially  as  it  came  from  their  hands,  ap- 
portioning among  the  respective  States  their  various  quotas  of  supplies.* 
Among  the  important  labors  of  Mr.  Ellsworth  during  this  session, 
one  other  should  be  here  properly  mentioned,  inasmuch  as  it  is  highly 
honorable  to  all  parties  connected  with  it.  When  that  patriotic  and 
true-hearted  American,  Robert  Morris,  brought  forward  his  scheme 
for  the  establishment  of  a  BANK,  no  one  co-operated  more  cordially 
and  efficiently  with  the  proposed  plan  than  Oliver  Ellsworth.  On  the 
21st  June,  1780,  a  letter  from  the  Board  of  War  informed  Congress 
that  a  "  number  of  patriotic  persons"  had  formed  a  plan  for  the  estab- 
lishment of  a  Bank  whose  object  should  be  the  public  service,  and 
desired  a  committee  appointed  to  confer  with  them  on  the  subject. 
Whereupon  a  committee  of  three  was  chosen,  of  whom  Ellsworth  was 
chairman.  The  next  day  he  laid  before  Congress  the  plan  of  the 
Bank,  which,  after  some  discussion,  was  adopted.  Its  sole  object 
was  to  establish  a  credit  by  means  of  which,  without  the  least  pecuni- 
ary advantage  to  the  stockholders,  relief  could  be  furnished  to  a  suffer- 
ing and  almost  disbanded  army.  They  proposed  on  their  own  credit 
to  transport  three  millions  of  rations  and  three  hundred  hogsheads  of 
rum  for  the  use  of  the  army,  the  public  credit  being  pledged  only  for 
their  ultimate  reimbursement.  Morris  himself  headed  the  subscription- 
list  of  stock  with  the  sum  of  £10,000  ;  and  others,  through  his  influ- 
ence, augmented  it  to  the  sum  of  £315,000.  And  thus,  when  every 
other  expedient  had  well  nigh  failed,  the  genius  of  one  man,  united 
with  the  well-timed  efforts  of  those  who  promptly  and  efficiently  sus- 
tained him,  kept  the  American  army  on  foot,  and  gave  a  new  im- 
pulse to  the  war  of  independence.  A  successful  result  in  finance,  in 
the  public  estimation,  of  course,  sinks  into  insignificance  hi  comparison 

This  system,  like  some  others  adopted  by  Congress,  rather  from  desperation 
than  choice,  was  soon  found  to  be  utterly  inefficient  It  never,  from  the  start, 
seems  to  have  had  the  concurrence  of  General  Washington. 


OLIVER  ELLSWORTH.  207 

with  the  brilliant  efforts  of  the  statesman  in  the  Senate,  or  the  prowess 
of  the  commanding  general  on  the  field  ;  and  yet  the  genius  of  the 
Philadelphia  banker  at  that  moment  was  of  more  consequence  to  the 
American  cause  than  the  tongues  of  the  best  orators  in  Congress,  or 
the  swords  of  half  the  general  officers  in  the  army.  What  the  country 
needed  then  were  supplies  and  credit,  rather  than  men  ;  and  as  an  his- 
torical fact,  the  establishment  of  Morris's  bank  may  be  regarded  as 
not  secondary  in  importance  to  the  battle  of  Trenton.  Had  this  taken 
place  in  Rome,  remarks  the  biographer  of  Morris,  even  in  her  most 
virtuous  age,  posterity  would  justly  have  considered  it  as  adorning  one 
of  the  fairest  and  most  splendid  eras  of  her  histories.* 

It  may  be  added,  that  Ellsworth  was  continued  chairman  of  the 
standing  committee  to  confer  with  the  officers  of  the  Bank,  as  occasion 
might  require  ;  but,  leaving  Congress  soon  after,  his  place  was  filled 
by  the  appointment  of  Mr.  Adams. 

Mr.  Ellsworth  was  re-appointed,  as  usual,  one  of  the  delegates  to 
Congress  from  Connecticut,  for  the  ensuing  year.  He  did  not  resume 
his  place,  however,  until  the  4th  June,  1181,  when  he  appeared  with 
his  colleague,  Roger  Sherman,  and  immediately  entered  upon  the  dis- 
charge of  the  important  duties  assigned  him.  From  the  scanty 
records  of  the  Congressional  Journal  of  that  period,  it  is  now  impos- 
sible to  ascertain  with  precision  not  only  what  were  the  specific  duties 
assigned  to  individual  members,  but  even  in  some  cases  what  were  the 
daily  subjects  of  the  deliberations  of  Congress.  It  appears,  however, 
that  Congress  was  laboring  with  unabated  energy  to  restore  the  public 
credit,  and  to  organize  measures  of  public  defence.  Robert  Morris 
had  been  placed  at  the  head  of  the  finances  ;  and  Ellsworth  was  now, 

*  Many  anecdotes  are  related  of  this  eminent  man,  honorable  alike  to  his  prac- 
tical sagacity,  as  well  as  his  disinterested  patriotism.  One  of  the  most  charac- 
teristic of  these  anecdotes  is  that  stated  by  Marshall,  in  a  note  to  the  Life  of 
Washington,  as  coming  from  the  lips  of  Morris  himself.— of  his  keeping  a  secret 
agent  in  the  army  of  Gen.  Greene,  with  instructions  to  advance  certain  drafts  and 
sums  of  money  to  Greene,  when  every  hope  of  supplies  had  failed.  Thus  Greene, 
in  ignorance  of  the  character  of  this  secret  agent,  was  constantly  kept  upon 
his  own  resources  until  the  very  last  moment,  and  then,  by  an  almost  miraculous 
interposition,  was  relieved  from  impending  ruin  without  the  slightest  idea  of  tho 
quarter  from  whence  the  timely  assistance  came.  Mr.  Morris  was  one  of  the  first 
senators  of  the  United  States  from  the  State  of  Pennsylvania.  He  died  in  1806, 
aged  seventy-three  years. 


208  LIVES  OF  THE  CHIEF-JUSTICES. 

as  he  had  been  on  the  occasion  of  the  establishment  of  the  Pennsyl- 
vania Bank,  one  of  his  most  ardent  and  efficient  coadjutors.  We  find 
about  this  time  a  variety  of  resolutions  passed  to  facilitate  the  opera- 
tions of  Mr.  Morris,  all  of  which  Ellsworth  concurred  in,  if  he  did  not 
originate.  One  day  the  disposition  and  management  of  the  public 
money  granted  by  his  most  Christian  Majesty  to  the  United  States, 
and  the  unsold  Bills  of  Exchange  drawn  on  Jay,  Franklin,  and  Lau- 
rens,  are  committed  to  the  superintendent  of  finances,  to  be  applied 
and  disposed  of ;  *  at  another  time  he  is  directed  to  take  order  for 
discharging  the  debt  due  from  the  United  States  to  the  Pennsylvania 
Bank  ;  f  and  that  the  Board  of  Admiralty  assign  him  the  shares  of 
the  United  States  in  certain  prizes  to  enable  him  speedily  to  launch 
and  equip  for  sea  the  ship  "  America"  on  the  stocks  at  Portsmouth ;  J 
and  again,  that  he  be  furnished  with  an  account  of  the  several  requisi- 
tions of  money  and  supplies  from  the  States,  and  that  he  take  measures 
for  calling  upon  them,  and  pressing  a  compliance  with  the  said  requi- 
sitions.! 

It  appears  also  from  the  Journal,  that  notwithstanding  these  united 
efforts  of  Congress  in  the  common  cause  of  the  country,  yet  no  lit- 
tle diversity  of  opinions,  and  even  jealousies,  were  at  times  manifested  in 
regard  to  the  burdens  to  be  borne  by,  and  the  distribution  of  supplies 
among,  the  respective  States.  Candor  and  truth  require  it  to  be  said 
that  on  such  occasions  Ellsworth  was  generally  found  standing  up 
firmly,  and,  perhaps,  with  a  too  unyielding  pertinacity,  for  the  interests 
of  his  own  State.  On  a  motion,  that  the  Board  of  War  forward  to 
North  Carolina  three  thousand  stand  of  arms  for  the  use  of  the  militia 
of  that  State,  Ellsworth  voted  to  strike  out  the  latter  words,  and  in- 
sert "  to  be  disposed  of  as  the  commanding  officer  of  the  Southern 
department  shall  direct ;"  and  the  motion  being  lost,  he  voted  in  favor 
of  one  made  by  his  colleague,  Mr.  Sherman,  giving  the  commanding 
officer,  General  Greene,  instead  of  the  State  authorities,  the  disposi- 
tion of  these  arms  among  the  State  militia.  ||  A  few  days  after,  his 
vote  is  recorded  in  the  negative  on  a  proposition  recommending  the 

*  Journal  of  Congress,  June  4th,  1781. 
t  Journal  of  Congress,  June  22d,  1781. 
$  Journal  of  Congress,  June  23rd,  1781. 
§  Journal  of  Congress,  June  28th,  1781. 
||  Journal  of  Congress,  July  7th,  1781. 


OLIVER  ELLSWORTH.  209 

States  to  loan  money  for  the  relief  of  the  exiled  inhabitants  of  South 
Carolina  and  Georgia,  and  guaranteeing  by  Congress  the  repayment 
of  such  money  so  loaned.*  So  too,  on  a  proposition  that  certain  sup- 
plies furnished  by  the  States  for  their  respective  troops  should  be 
accredited  to  such  States  respectively  as  so  much  advanced  on  their 
respective  quotas  of  taxes,  the  name  of  Ellsworth,  with  that  of  every 
other  !New  England  member,  except  Mr.  Sullivan,  of  New  Hampshire, 
is  found  in  the  affirmative,  f 

It  would  be  doing  injustice,  however,  to  Mr.  Ellsworth,  to  suppose 
that  his  action  on  these  questions  was  influenced  by  any  contracted  or 
illiberal  sectional  feeling.  Of  this  he  seems  to  have  been  incapable,  as 
his  conduct  on  various  occasions  shows.  Thus,  soon  after  the  vote  on 
the  supplies,  we  find  him  at  the  head  of  a  committee,  of  which  Madi- 
son also  was  a  member,  devising  the  means  of  defraying  out  of  the 
public  treasury  the  expenses  of  the  delegates  from  North  Carolina, 
South  Carolina,  and  Georgia,  who  were  shut  out  by  the  events  of  the 
war,  from  receiving  remittances  from  their  respective  States,  and 
recommending  suitable  provisions  for  that  purposes,  which  Congress 
promptly  adopted.^ 

Ellsworth  remained  in  attendance  upon  Congress  during  the  whole 
summer,  and  rendered  good  service  in  various  capacities,  particularly 
upon  the  executive  committees  on  which  he  was  placed,  a  sphere  in 
which  his  industry,  his  practical  good  sense,  and  his  sound,  discriminat- 
ing judgment  eminently  fitted  him  for  usefulness.  Returning  home 
toward  the  latter  part  of  August,  he  remained  absent  more  than  a 
year,  though  in  the  mean  time  re-chosen  at  the  annual  session  of  the 
Assembly  one  of  the  seven  delegates  from  Connecticut  to  Congress. 

He  took  his  seat  again  in  Congress  on  the  20th  of  December,  1782, 
and  with  the  exception  of  a  month  or  two,  during  the  winter,  remained 
in  constant  attendance  until  after  the  removal,  or  rather  flight,  of  that 
body  from  Philadelphia  to  Princeton,  in  the  latter  part  of  June  in  the 
following  year.  This  was  the  last  period  of  Mr.  Ellsworth's  service  in 
Congress.  And  it  was  a  period,  perhaps,  more  interesting  to  the 

*  Journal  of  Congress,  July  21st,  1781. 
f  Journal  of  Congress,  July  23rd,  1781. 
J  Journal  of  Congress,  July  30th,  1781. 
14 


210  LIVES   OF  THE  CHIEF-JUSTICES. 

civilian  and  statesman  than  any  which  had  preceded  it.  The  confed- 
eration had  now  reached  the  turning  point  of  its  destiny.  The  war 
of  the  revolution  had  been  brought  to  a  close  ;  but  the  grand  result 
was  still  a  problem,  and  the  issue  of  the  struggle  lay  darkly  concealed 
in  the  future.  The  great  work  of  organization  was  now  to  be  done  ; 
the  elements  of  empire  lay  scattered  all  around,  and  these  were  to  be 
gathered  up,  and  brought  together,  and  moulded  in  symmetrical  form ; 
political  institutions  were  to  be  reared  ;  social  rights  secured  ;  and  civil 
liberty  consolidated  upon  the  basis  of  republican  institutions.  Such, 
in  its  broadest  view,  was  really  the  labor  devolving  on  the  men  who 
represented  the  sovereignty  of  the  Confederation  at  the  close  of  the 
revolutionary  war,  when  Ellsworth  once  more  took  his  seat  in  Con- 
gress. Never,  since  he  had  been  a  member  of  that  body,  had  it  ex- 
hibited a  greater  degree  of  intellectual  vigor.  Its  deliberations  were 
now  influenced,  if  not  guided,  by  the  splendid  talents  of  a  Madison, 
a  Rutledge,  and  a  Hamilton,  and  around  these,  who  might  justly  be 
said  to  stand  primi  inter  pares,  were  gathered  Wilson,  Carroll,  Lee, 
Bland,  Dyer,  Gorham,  Ramsay,  and  others,  whose  names  are  equally 
entitled  to  an  honorable  mention  in  history. 

In  the  preceding  sketch  of  Judge  Rutledge  I  have  alluded  to  some 
of  the  important  subjects  which  occupied  the  attention  of  Congress  at 
this  period.  Though  Ellsworth  did  not  participate  in  the  discussions 
growing  out  of  these  subjects  so  prominently  as  some  of  his  associates, 
yet  he  occasionally  mingled  in  the  debates,  and  always  with  effective- 
ness and  force.  On  the  overshadowing  question  of  the  PUBLIC  CREDIT, 
and  the  raising  of  a  revenue,  he  differed  essentially  from  Hamilton, 
Wilson,  and  Madison.  These  gentlemen  were  strongly  desirous  of 
providing  for  a  general  and  permanent  revenue  instead  of  State  con- 
tributions ;  but  the  mode  of  raising  it  and  enforcing  the  collection  was 
the  main  difficulty  in  question.  The  favorite  proposition  of  Hamilton 
was,  that  it  should  be  "  collected  under  the  authority  of  Congress." 
But  this  excited  the  jealousy  of  Ellsworth,  who,  .even  at  this  early  pe- 
riod, viewed  with  disfavor  any  encroachments  of  the  Federal  power 
upon  the  complete  and  absolute  sovereignty  of  the  States.  "  On  the 
one  side,"  he  remarked,  "  he  felt  the  necessity  of  Continental  funds  for 
making  good  the  Continental  engagements  ;  but  on  the  other  desponded 
of  a  unanimous  concurrence  of  the  States  in  such  an  establishment. 


OLIVER  ELLSWORTH.  211 

He  observed  that  it  was  a  question  of  great  importance  how  tar  the 
Federal  Government  can,  or  ought,  to  exert  coercion  against  delinquent 
members  of  the  Confederacy ;  and  that  without  such  coercion  no  cer- 
tainty could  attend  the  Constitutional  mode  which  referred  every 
thing  to  the  unanimous  punctuality  of  thirteen  different  councils. 
Considering,  therefore,  a  continental  revenue  as  unattainable,  and  pe- 
riodical requisitions  from  Congress  as  inadequate,  he  was  inclined  to 
make  trial  of  the  middle  mode  of  permanent  State  funds,  to  be  pro- 
vided at  the  recommendation  of  Congress,  and  appropriated  to  the 
discharge  of  the  common  debt."  * 

This  brought  out  Hamilton,  who,  with  that  impetuous  boldness 
which  marked  his  character,  scorning  everything  that  looked  like  con- 
cealment in  attack  as  well  as  defence,  avowed  as  an  additional  reason 
for  wishing  the  revenue  to  be  collected  by  the  government,  that  "  as 
the  energy  of  the  Federal  Government  was  evidently  short  of  the  de- 
gree necessary  for  pervading  and  uniting  the  States,  it  was  expedient 
to  introduce  the  influence  of  officers  deriving  their  emoluments  from, 
and  consequently  interested  in,  supporting  the  power  of  Congress."  A 
general  smile  from  those  members  who  concurred  with  Ellsworth,  greet- 
ed these  remarks  of  Hamilton.  Mr.  Madison  himself  regarded  them 
as  "  imprudent  and  injurious  to  the  cause,"  observing  that  some  of  the 
members  took  notice  in  private  conversation  that  Hamilton  had  let 
out  the  secret.f 

Soon  after  this,  Mr.  Rutledge  introduced  his  scheme  for  raising  reve- 
nue by  an  impost  of  five  per  cent,  ad  valorem,  with  the  proviso  that  the 
money  arising  from  such  duties,  and  paid  by  any  State,  should  be 
passed  to  the  credit  of  such  State  on  account  of  its  quota  of  the  debt 
of  the  United  States.  Ellsworth  was  favorable  to  this  mode  of  raising 
revenue  ;  but  strongly  opposed  the  proposition  that  each  State  should 
be  credited  for  the  duties  collected  within  its  ports,  as  a  proposition 
eminently  unjust  to  his  own  State,  which  did  not  import  one-fiftieth 
part  of  the  merchandise  consumed  within  it.  He  was  opposed  also  to 
Hamilton's  plan  of  the  appointment  of  collectors  by  Congress ;  but 
was  willing  to  compromise,  provided  the  respective  States  had  the 
nomination  of  these  officers.  "  He  concurred,"  he  said,  "  in  the  cxpe- 

*  Madison  Papers,  Vol.  I.  291. 

t  Madison  Papers,  Vol.  I.  p.  291,  note. 


212  LIVES  OF  THE  CHIEF-JUSTICES. 

diency  of  new  modeling  the  scheme  of  the  impost  by  defining  the  period 
of  its  continuance ;  by  leaving  to  the  States  the  nomination,  and  to 
Congress  the  appointment  of  collectors,  or  vice  versa,  and  by  a 
more  determinate  appropriation  of  the  revenue.  The  first  object  to 
which  it  ought  to  be  applied  was,  he  thought,  the  foreign  debt.  This 
object  claimed  a  preference,  as  well  from  the  hope  of  facilitating  fur- 
ther aids  from  that  quarter,  as  from  the  disputes  into  which  a  failure 
may  embroil  the  United  States.  The  prejudices  against  making  a 
provision  for  foreign  debts  which  shoulfl.  not  include  domestic  ones 
was  unjust,  and  might  be  satisfied  by  immediately  requiring  a  tax,  in 
discharge  of  which  loan-office  certificates  should  be  receivable.  State 
funds,  for  the  domestic  debts,  would  be  proper  for  subsequent  con- 
sideration," &c.* 

The  history  of  these  discussions  in  regard  to  the  public  revenue,  has 
been  briefly  traced,  and  the  result  indicated,  in  the  preceding  sketch  of 
Rutledge,f  which  renders  it  unnecessary  to  pursue  the  subject  farther 
in  this  place.  To  the  final  compromise  Ellsworth  gave  his  cordial 
assent.  Immediately  afterwards  he  was  placed  on  a  committee  with 
Hamilton  and  Madison  to  draft  an.  address  to  the  people  of  the  States, 
recommending  the  sanction  and  adoption  of  the  proposed  measure. 
The  admirable  address  of  the  committee  is  from  the  pen  of  Madison.  J 
It  was  submitted  to  Congress,  and  unanimously  ratified  by  that  body 
on  the  26th  of  April  following. 

In  the  interval  of  the  debates  on  the  Public  Credit,  Congress  found 
time  for  a  moment  to  revert  to  the  great  work  of  organizing  the  civil 
departments  of  the  Government,  and  to  the  arrangements  necessary  to 
be  taken  in  consequence  of  the  peace.  A  committee  was  ordered 
whose  object  was  "  to  provide  a  system  for  foreign  affairs,  for  Indian 
affairs,  for  military  and  naval-  establishments,  and  also  to  carry  into 
execution  the  regulation  of  weights  and  measures,  and  other  articles  of 
the  Confederation  not  attended  to  during  the  war."  It  was  scarcely 
possible  to  entrust  to  any  committee  a  more  important  charge  than 
this,  embracing  as  it  did  the  organization  of  some  of  the  most  essential 
departments  of  civil  administration,  The  selection  of  the  committee, 

*  Madison  Papers,  Vol.  I.  pp.  309,  310. 

f  Ante,  pages  148  to  151. 

J  Madison  Papers,  Vol.  I.    Appendix,  No.  2. 


OLIVER  ELLSWORTH.  213 

too,  indicates  something  of  the  sense  entertained  by  Congress  of  the 
pre-eminent  talents  and  capacity  of  the  members  chosen  to  fill  it. 
They  were  Madison,  Ellsworth,  and  Hamilton.  It  is  worthy  of  re- 
mark, that  no  committee  of  special  importance  was  ordered  by  Con- 
gress while  these  gentlemen  were  members  of  that  body,  without  the 
appointment  of  some  one  or  more  of  them  to  serve  upon  it.  With 
Rutledge,  who  is  frequently  found  their  associate  upon  committees  and 
otherwise,  they  may  be  regarded  as  the  leading  and  controlling  minds 
of  that  Congress.  It  would  have  been  idle  to  seek  in  the  body,  of 
which  they  were  members,  or  any  other  legislative  body  of  the  times, 
men  whose  characters  were  stamped  with  a  more  striking  and  marked 
individuality,  and  who  were  endowed  with  a  wider  diversity  of  talents 
and  faculties  ;  yet,  they  seem  to  have  been  admirably  adapted  to 
unite  in  harmonious  effort,  each  strong  in  his  own  sphere  of  thought 
and  action,  and  apparently  eliciting  by  contact  of  mind,  a  more 
full  and  vigorous  development  of  the  peculiar  talent  possessed  by  the 
other. 

The  session  of  Congress  was  abruptly  terminated  on  the  21st  June, 
1183.  On  that  day  a  small  body  of  mutinous  soldiers  from  Lancas- 
ter, who  had  marched  into  the  city  the  day  before  for  the  avowed 
purpose  of  obtaining  a  settlement  of  their  accounts,  surrounded  the  State 
House  where  Congress  had  assembled.  Although  no  act  of  violence 
was  committed,  yet  the  soldiers  remained  in  their  position  around  the 
hall,  occasionally  uttering  abusive  words,  and  wantonly  pointing  their 
muskets  to  the  windows  of  the  State  House.  The  revolutionary  days 
of  Paris  and  the  scenes  of  the  French  Convention  were  thus,  on  a  less 
formidable  scale,  anticipated  by  these  disgraceful  outrages  of  a  mutin- 
ous soldiery.  But  Congress  acted  with  firmness  and  spirit.  A  com- 
mittee was  appointed,  consisting  of  Hamilton,  Ellsworth,  and  Peters, 
to  confer  with  the  executive  magistrates  of  Pennsylvania  on  the  prac- 
ticability of  taking  effective  measures  to  put  down  the  mutiny,  and 
support  the  public  authorities.  The  conference,  however,  was  unsatis- 
factory. It  disclosed  the  humiliating  fact  that  the  authorities  of  Penn- 
sylvania were  not  capable  of  protecting  Congress  in  its  deliberations. 
They  could  not,  as  they  alleged,  induce  their  militia  to  act,  nor  did 
they  believe  any  exertions  were  to  be  looked  for  from  them,  except 
"  in  case  of  actual  vioknce  to  personal  property."  A  fresh  conference 


214  LIVES  OF    THE  CHEEP-JUSTICES. 

was  ordered  on  the  evening  of  the  21st,  the  committee  being  instruct- 
ed, in  case  it  was  unsuccessful,  to  advise  the  President  to  adjourn 
Congress,  and  summon  the  members  to  meet  at  Princeton  or  Trenton, 
in  Xew  Jersey.  This  new  conference  produced  only  a  repetition  of 
the  doubts  respecting  the  disposition  of  the  militia  to  act ;  and  it 
was  even  questioned  whether  a  renewal  of  the  insult  to  Congress 
would  be  a  sufficient  provocation.  The  committee  being  convinced 
that  there  was  "  no  satisfactory  ground  to  expect  prompt  and  ade- 
quate exertions  on  the  part  of  the  Executive  of  the  State  for  support- 
ing the  public  authorities,"  on  receiving  the  final  answer  of  the  Coun- 
cil, advised  the  President,  pursuant  to  their  instructions,  to  adjourn 
Congress,  which  was  thereupon  done,  the  members  being  notified  ver- 
bally, and  also  summoned  by  proclamation  to  meet  at  Princeton. 

On  the  re-assembling  of  Congress  at  Princeton,  June  30th,  Ells- 
worth and  Hamilton  made  a  report  from  their  committee,  giving  a 
detailed  account  of  their  conferences  with  the  authorities  of  Pennsyl- 
vania, and  its  unsuccessful  result.  They  also  made  a  report  from  an- 
other committee  on  which  they  had  been  appointed,  with  Mr.  Bland, 
recommending  that  General  Howe  march  to  Pennsylvania  with  such 
force  as  might  be  necessary  to  put  down  the  mutiny,  and  bring  the 
mutineers  to  trial  and  punishment.  The  report  was  unanimously 
adopted.  General  Washington,  who  keenly  felt  the  mortification  of  this 
disgraceful  outrage,  had  already  taken  prompt  and  efficient  measures 
to  put  down  the  mutiny  and  restore  order.  This  was  promptly  effect- 
ed without  bloodshed,  and  most  of  the  insurgents  subsequently  ac- 
cepted furloughs  under  the  resolution  of  Congress  to  that  effect.* 

Ellsworth  remained  a  member  of  Congress  but  a  short  time  after 
that  body  removed  to  Princeton.  His  name  is  found  on  the  Journal  as 
late  as  July  llth,  1183,  soon  after  which  period  he  was  relieved  by  the 
arrival  of  two  of  his  colleagues,  and  returned  home.  It  was  his  last  ser- 
vice in  the  councils  of  the  Confederacy.  For,  though  chosen  again 
by  the  Connecticut  Legislature  at  the  annual  election,  as  he  had  been 
for  six  years  previous,  he  declined  to  serve,  and  a  successor  was 
accordingly  appointed.  The  following  year  Congress  conferred  upon 
him  the  appointment  of  commissioner  of  the  Board  of  Treasury.  This 

*  See  Journals  of  Congress,  June  30th  and  July  1st,  1783.  Madison  Papers, 
Vol  I.  p.  467. 


OLIVER  ELLSWORTH.  215 

also  he  declined.  The  period  had  arrived  when  his  private  affairs  im- 
peratively demanded  his  attention.  Now  that  the  crisis  was  over,  and 
the  danger  had  passed,  he  thought  that  a  long,  and  arduous,  and 
faithful  public  service  entitled  him  to  an  honorable  discharge.  Be- 
sides, he  considered  his  first  fealty  to  be  due  to  his  native  State,  and  a 
place  of  honorable  usefulness,  if  not  of  inviting  ambition,  was  urged 
upon  him  in  a  branch  of  her  legislative  council,  and  upon  her  supreme 
judicial  bench,  which  he  did  not  feel  at  liberty  to  dech'ue. 

It  was  as  a  member  of  the  Supreme  Court  of  Errors,  into  which 
he  came  on  its  organization  in  1784,  that  the  first  judicial  service  of 
Mr.  Ellsworth  was  rendered.  Tin's  court  consisted  of  the  Lieutenant- 
Governor  and  the  twelve  assistants,  or  upper  house  of  the  Legisla- 
ture,* and  sat  as  an  appellant  court  to  review  the  judgments  of  the 
Superior  Court.f  Judge  Ellsworth  remained  in  it  only  a  short  time. 
The  following  year  an  act  was  passed  prohibiting  the  same  person 
from  holding  the  office  of  Judge  of  the  Superior  Court  and  of  the 
Supreme  Court  of  Errors  at  the  same  time  ;  whereupon  Ellsworth 
resigned  the  latter  place,  as  did  also  three  of  his  associates,  namely, 
the  Chief-Justice  Richard  Law,  Roger  Sherman,  and  William  Pitkin, 
all  of  whom  retained  their  seats  on  the  bench  of  the  Superior  Court. 
The  remaining  member  of  the  court  was  Eliphalet  Dyer,  one  of  the 
signers  of  the  Declaration  of  Independence,  and  a  gentleman  who 
had  distinguished  himself  by  various  important  civil  services  during 
the  period  of  the  revolutionary  war. 

The  Superior  Court  of  Connecticut  had  an  extended,  and  indeed, 
almost  unlimited  jurisdiction.  It  embraced  suits  in  equity  as  well  as 
at  law,  an  appellate  jurisdiction  over  the  county  courts,  and  an  ex- 
clusive jurisdiction  of  all  criminal  cases  relating  to  life,  limb  and  ban- 
ishment. At  the  time  when  Ellsworth  came  to  the  bench,  the  juris- 
prudence of  Connecticut  was  in  a  very  unsettled  state.  It  was  iii- 
deed  still  a  question,  how  far  the  common  law  was  to  be  regarded  as 

*  In  1794,  an  act  was  passed,  making  the  Governor  also  a  member  of  the 
court.  The  court  continued  in  existence  until  1807,  when  its  powers  were  trans- 
ferred to  the  nine  Judges  of  the  new  Supreme  Court 

t  Ellsworth  had  been  a  member  of  the  Council  for  several  years,  having  been 
first  elected  in  1780. 


216  LIVES  OF  THE  CHIEF-JUSTICES. 

a  rule  of  decision  by  the  courts  ;*  and  some  years  later  we  find  Judge 
Root  himself,  in  the  preface  to  his  reports,  discussing  the  question, 
whether  there  is  any  "  common  law  in  Connecticut ;  "  denying  that 
the  English  common  law  was  ever  applicable  to  the  colony,  and  broadly 
asserting  that  their  own  was  "  derived  from  the  law  of  nature  and 
revelation."^  Some  of  the  earlier  decisions,  indeed,  seem  to  sustain 
this  position.  Thus,  in  a  case  decided  about  the  time  of  Ellsworth's 
admission  to  the  bar,  it  was  held,  that  the  English  doctrine  of  sur- 
vivorship between  joint  tenants  was  exploded,  and  was  not  regarded 
as  the  law  in  Connecticut ;  and  Judge  Root  adds,  that  the  principle 
so  established,  had  never  since,  to  his  knowledge,  been  contradicted  or 
shaken.!  So,  too,  among  the  earliest  cases  decided  by  Ellsworth  in 
the  Superior  Court  are  some  which  directly  contravene  established 
common  law  principles  ;  as  for  example,  in  the  case  of  Horsford  vs. 
Wright,  §  which  holds  that  the  damages  on  a  breach  of  covenant  of 
warranty  in  a  deed,  are  to  be  ascertained  by  the  value  of  the  land, 
and  not,  as  by  the  English  rule,  which  gives  the  consideration  of  the 
deed,  &c. 

On  the  other  hand,  it  is  clearly  evident,  from  the  whole  current  of 
these  early  Connecticut  decisions,  that  not  only  was  the  common  law 
recognized  in  their  courts,  but  that  in  some  cases  it  was  applied  with 
strict  and  technical  precision.  An  instance  of  this  is  to  be  found  in 
the  case  of  Hart  vs.  Smith,  ||  at  the  September  term  of  the  court, 
1786,  wherein  the  majority  of  the  court  laid  down  the  rule,  that 
assumpsit  would  not  lie  to  recover  back  money  paid  ly  mistake,  in  the 
settlement  of  an  account.  It  was  intimated,  that  if  the  mistake  ap- 

*  "  Our  courts  were  still  in  a  state  of  embarrassment,"  says  Kirby,  "  sensible 
that  the  common  law  of  England,  though  a  highly  improved  system,  was  not  fully 
applicable  to  our  situation." 

t  In  Fitch  vs.  Brainerd,  2  Day's  Reports,  189,  decided  in  1805.  the  Court  of 
Errors,  though  denying  that  the  common  law  of  England,  as  such,  ever  had  any 
force  in  Connecticut,  admits  that  it  had  become  '•'  necessary,  in  order  to  avoid 
arbitrary  decisions,  and  for  the  sake  of  rules,  which  habit  had  rendered  familiar, 
as  well  as  the  wisdom  of  ages  matured,  to  make  that  law  our  own  by  practical 
adoption — with  such  exceptions  as  a  diversity  of  circumstances,  and  the  incipient 
customs  of  our  own  country  required." 

J  Phelps  vs.  Jepson,  1  Root's  Reports,  48.        §  Kirby's  Reports,  3. 

||  Kirby's  Reports,  127. 


OLIVER  ELLSWORTH.  217 

peared  upon  the  face  of  the  account,  the  party  aggrieved  might  have 
his  remedy,  but  this  remedy  could  be  only  by  special  action  on  the.  case. 
It  seems  somewhat  surprising  that  such  a  distinction,  based  upon 
the  merest  technicality,  should  have  made  an  impression  upon  a  mind 
so  eminently  practical  as  that  of  Roger  Sherman  ;*  and  that,  sitting  in 
a  court  with  both  equity  and  common  law  jurisdiction,  he  should  have 

*  ROGER  SHERMAX  is  less  known  as  a  lawyer  and  a  judge,  than  as  a  statesman 
and  staunch  revolutionary  patriot.  Born  in  1721,  of  humble  parents,  he  was  ap- 
prenticed in  his  youth  to  a  shoemaker,  and  continued  to  work  at  his  trade  for  a 
livelihood  for  some  time  after  he  arrived  at  age.  But  the  cobbler's  bench  was  not 
the  appropriate  sphere  of  action  for  a  mind  like  Sherman's.  His  active  intellect, 
thirsting  for  knowledge,  soon  rose  superior  to  circumstances ;  and,  in  a  few  years, 
by  dint  of  untiring  labor  and  perseverance,  he  exhibited,  for  the  emulation  of  his 
own  age  and  posterity,  an  example  of  one  of  the  most  thoroughly  "  self-made 
men"  that  America  has  produced.  In  1743,  we  find  the  shoemaker  on  his  bench 
with  a  book  fixed  before  him,  engaged  in  studying  the  elementary  mathematics 
over  his  work ;  a  year  or  two  later  he  is  employed  in  surveying,  having  mastered 
the  principles  of  that  science ;  in  1748,  he  is  making  "  astronomical  calculations 
for  an  almanac ; "  soon  after  we  find  him  studying  law,  and  in  1754,  admitted  an 
attorney,  commencing  a  career  of  honorable  and  successful  practice.  Sherman 
served  in  the  Connecticut  General  Assembly  for  many  years  prior  to  the  Revolu- 
tion. As  is  well  known,  he  was  one  of  the  signers  of  the  Declaration,  and  served 
in  Congress  during  nearly  the  whole  period  of  the  Revolutionary  war.  He  was 
a  member  of  the  Convention  which  framed  the  Federal  Constitution,  and  of  the 
State  Convention  which  ratified  it.  He  was  a  member  of  the  first  House  of  Rep- 
resentatives of  the  United  States,  and  on  the  resignation  of  Dr.  Johnson,  was 
elected  to  the  Senate,  of  which  body  he  was  a  member  at  the  time  of  his  death, 
in  1793. 

Sherman  had  practised  five  years  at  the  bar,  when,  in  1759,  he  was  appointed  a 
Judge  of  the  Litchfield  County  Court  Two  years  afterwards,  on  removing  to 
New  Haven,  he  received  a  similar  appointment  in  that  county.  In  176G,  he  was 
elevated  to  the  bench  of  the  Superior  Court,  which  omce  he  held  until  his  elec- 
tion to  Congress  in  1789,  a  period  of  twenty-three  years.  During  nineteen  years 
of  this  period,  he  was  also  an  assistant,  or  member  of  the  council  (annually 
elected),  and  resigned  his  place  there,  with  Ellsworth,  on  the  passage  of  the  law 
prohibiting  the  same  person  from  serving  as  a  Judge  of  the  Superior  Court  and 
the  Supreme  Court  of  Errors.  Mr.  Sherman,  besides  his  judicial  duties,  rendered 
valuable  sen-ice  to  his  State  in  1783,  by  revising,  with  the  assistance  of  Judge 
Law,  the  whole  body  of  the  Connecticut  statutes.  Throughout  life  he  sustained 
an  unblemished  reputation ;  and  at  the  time  of  his  death  enjoyed  an  enviable  re- 
putation as  one  of  the  ablest  and  soundest  jurists  whom  Connecticut  has  pro 
duced.  The  modest  inscription  upon  his  tomb  is  a  just  tribute  to  his  character  and 


218  LIVES  OF  THE  CHIEF-JUSTICES. 

insisted  with  such  unbending  rigor  in  preserving  the  boundaries  which 
limited  the  jurisdiction  of  each,  and  maintaining  the  line  of  demarca- 
tion between  them.  Ellsworth  dissented  from  this  judgment,  and  ap- 
plied to  the  case  what  seems  to  us  at  this  day,  the  more  liberal,  as 
well  as  more  correct  principle.  He  thought  it  was  an  established  pro- 
position of  law,  founded  on  the  most  approved  justice,  that  an  action 
would  lie  for  money  paid  by  mistake,  whether  in  the  settlement  of  an 
account,  or  in  any  other  way,  and  no  matter  whether  the  mistake  ap- 
pear upon  the  face  of  the  account  or  not.  It  was  sufficient  that  there 
had  been  a  settlement  and  a  mistake,  and  that  the  defendant  had  re- 
ceived money  of  the  plaintiff  which  he  ought  not  in  conscience  to 
retain.  This  point  settled,  he  applies  the  equitable  principle  to  a 
common  law  action,  holding  that  the  plaintiff  might  recover  in 
assumpsit.  Under  the  issue  in  this  action,  the  defendant  might  dis- 
prove the  facts  set  up  by  the  plaintiff,  or  establish  other  and  inde- 
pendent facts  to  rebut  the  equity  of  the  plaintiff's  demand. 

So  much  of  the  labors  of  Ellsworth,  while  a  Judge  of  the  Superior 
Courts  of  Connecticut,  as  have  been  preserved,  may  be  found  in 
Kirby's  Report,  a  single  volume,  containing  the  adjudged  cases  from 
1785  to  1788.  This  was  the  first  attempt,  in  Connecticut,  to  preserve 
the  lex  iion  scripta.  Up  to  1785,  the  decisions  of  the  courts  had  been 
oral,  and  of  course  were  not  preserved.  In  that  year  the  Legislature 
passed  an  act  requiring  the  Judges  to  render  written  reasons  for  their 
decisions,  when  the  pleadings  closed  in  an  issue  of  law.  "  This,"  re- 
marks the  reporter,  "  was  a  great  advance  towards  improvement." 
Still  the  business  was  but  half  accomplished,  for  the  arguments  of  the 
Judges,  without  a  history  of  the  case,  as  he  also,  somewhat  -naively, 
remarks,  "  could  not  be  intelligible."  In  other  words,  the  services  of 
a  reporter  were  essential  to  rescue  from  oblivion  the  learning  of  the 
judiciary,  as  well  as  to  render  their  judgments  "  intelligible."  This 
was  the  task  of  Mr.  Kirby — a  task  undertaken  con  amore,  diligently 
prosecuted,  and  faithfully  executed.  The  result,  whatever  may  be 
thought  of  it  in  a  practical  and  utilitarian  sense,  is  certainly  a  matter 
of  curious  interest  to  the  legal  antiquarian.  Like  the  renovated 
tombstones  of  the  Cameronian  martyrs,  under  the  pious  chisel  of  Old 

virtues : — "  A  man  of  approved  integrity,  a  cool,  discerning  Judge,  a  prudent, 
sagacious  Politician,  a  true,  faithful,  and  firm  Patriot." 


OLIVER  ELLSWORTH.  gjg 

Mortality,  these  relics  of  the  past,  under  the  revivifying  touch  of  Mr. 
Kirby,  stand  out  legible  monuments  of  the  early  jurisprudence  of 
Connecticut. 

Few  of  the  reported  cases  in  Kirby  would  attract  attention  in  our 
day,  either  on  account  of  their  novelty  or  importance.  I  may  allude 
in  this  place,  however,  to  one  of  them,  as  it  affords  a  fair  sample — 
the  best,  on  the  whole,  which  remains — of  Judge  Ellsworth's  method 
in  the  examination  of  a  legal  question,  and  his  mode  of  reasoning.  It 
is  the  case  of  Adams  vs.  Kellogg,*  at  the  November  term  of  the 
court,  1786.  The  point  involved  was,  whether  a  married  woman 
might  devise  her  real  estate  to  her  husband  ;  and  it  brought  up  for 
discussion  the  very  interesting  question,  which  has  been  debated  with 
great  learning  and  skill  since  that  time,  whether  the  right  to  devise  by 
will,  was  or  was  not,  a  natural  right,  which  might  be  exercised  independ- 
ent of  statute.  The  opinion  of  Judge  Ellsworth  upon  this  point  is  differ- 
ent from  some  conclusions  that  have  been  arrived  at  in  our  day  ;  I  shall 
not,  however,  undertake  to  aver  that  it  is  less  correct,  but  leave  him  to 
speak  for  himself.  His  opinion  in  the  case, — which  is  on  all  points 
adverse  to  the  right  of  a  feme  covert  to  devise — is  preserved  in  the 
appendix  to  the  report.  It  seems  to  be  a  very  carefully  considered, 
compact,  and  logical  exposition  of  his  views,  bearing  upon  it  the  im- 
press of  a  strong,  and  well  disciplined,  but  cautious  mind  ;  a  mind  not 
keenly  suggestive,  or  strongly  original,  but  constitutionally  adverse  to 
innovations,  preferring  to  follow  the  conservative  doctrines  of  society, 
and  to  stand  with  Lord  Kenyon  super  antiquas  vias,  in  the  well-beaten 
paths  of  the  law.  Without  attempting  a  full  analysis,  the  following 
brief  resume  will  serve  to  indicate  the  general  scope  of  the  argument : 

A  married  woman  has  neither  a  natural  right  to  devise,  nor  a  right 
at  common  law,  nor  by  statute. 

1st.  The  right  to  direct  the  succession  of  estates  by  will  is  not  a 
natural  but  a  municipal  right. 

2d.  Even  if  it  is  a  natural  right,  it  does  not  follow  that  a,  feme  covert 
has  it. 

3d.  It  is  a  common  law  and  not  a  statute  disability  that  she  is 
under. 

4th.  The  statute  (by  examination)  furnishes  as  little  authority  for 

•  Kirby's  Reports,  195. 


220  LIVES  OF  THE  CHIEF-JUSTICES. 

a  feme  covert  to  make  a  will  as  the  law  of  nature  or  the  common  law 
had  done  before. 

5th.  Considerations  of  policy  serve  to  confirm  the  opinion  that  she 
has  no  power  to  devise. 

"  The  possession  of  this  power,"  he  remarks,  "  would  be  as  incon- 
venient for  a,  feme  covert,  as  unnecessary,  because  it  would  expose  them 
to  endless  teasings  and  to  dangerous  coercions,  placed  in  the  power  of 
a  husband  whose  solicitations  they  cannot  resist,  and  whose  commands 
in  all  that  is  lawful,  it  is  their  duty  to  obey  ;" — a  wholesome  doctrine 
that  perhaps  might  properly  be  recommended  to  the  attention  of  our 
modern  reformers  ;  and  he  adds,  as  a  final  reason  of  policy,  "  Their 
wills,  taken  in  a  corner,  and  concealed  from  all  the  world,  till  they 
have  left  it,  can  afford  but  very  uncertain  evidence  of  the  real  wishes 
of  their  hearts."* 

There  are  also  a  few  cases,  or  rather  brief  memoranda  and  notes  of 
cases  of  the  old  Superior  Court,  during  Ellsworth's  service,  collected 
in  the  first  volume  of  Judge  Root's  Reports.  But  the  same  remark 
may  be  generally  made  in  regard  to  their  novelty  and  value,  as  of  the 
majority  of  the  cases  in  Kirby.  I  do  not  find  in  them  much  worthy 
of  notice,  as  connected  with  Ellsworth's  judicial  character,  especially 
as  the  reasons  for  the  judgments  rendered  are  not  given.  Occasion- 
ally, however,  we  find  something  beyond  the  ordinary  and  beaten 
track  of  common  law  decisions,  mainly  growing  out  of  that  new  class 
of  cases,  which  the  revolutionary  troubles  had  excited.  In  the  deci- 

*  Two  years  afterwards  the  Supreme  Court  of  Errors  reversed  this  judgment  of 
the  Superior  Court,  after  an  elaborate  argument  at  the  May  term,  and  a  further 
argument  at  the  October  term  of  the  same  year.  That  decision  was  followed  by  the 
subordinate  courts,  and  the  law  was  considered  as  settled.  Numerous  wills,  made 
by  femes  coverts,  by  the  advice  of  the  best  counsel  in  the  State,  were  approbated  by 
the  Court  of  Probates.  In  1805,  the  question  again  came  before  the  Court  of  Er- 
rors, Judge  Ellsworth  being  at  tha^  time  a  member  of  the  court ;  and  after  a  full 
and  very  learned  argument,  the  court  unanimously  reversed  the  judgment,  and 
came  back  to  the  principle  established  by  the  Superior  Court  in  Adams  vs.  Kel- 
logg. "  That  decision,"  says  the  court,  alluding  to  the  reversal  of  the  judgment 
of  Kellogg  vs.  Adams,  by  the  Court  of  Error,  "  we  are  constrained  to  say,  after 
much  deliberation,  was  not  law."  A  full  report  of  this  case,  under  the  title  of 
Fitch  vs.  Brainard,  is  to  be  found  in  2  Day's  Conn.  Reports,  163-194.  The  rea- 
soning of  the  court  in  delivering  this  judgment,  proceeds  upon  similar  principles 
with  that  of  Judge  Ellsworth,  in  Adams  vs.  Kellogg. 


OLIVER  ELLSWORTH.  221 

sion  of  such  questions,  Ellsworth  and  his  associates  were  governed  by 
the  broadest  and  most  liberal  principles  of  public  policy.  Thus,  for 
example,  in  one  case,  in  an  action  against  a  deputy  commissary  for 
army  purchases,  the  court  held  the  defendant  not  liable,  he  having 
acted  as  the  agent  or  servant  of  the  public.  In  another,  a  negro  slave 
having  enlisted  and  served  in  the  continental  army,  with  his  master's 
consent,  is  held  to  be  manumitted  by  such  service,  and  entitled  to  a 
discharge  from  imprisonment,  on  habeas  corpus.* 

In  some  of  these  cases,  too,  there  seems  to  be  a  disposition  to  rela~ 
the  strict  severity  of  New  England  custom,  as  in  Carpenter  vs.  Crane,f 
where  the  defence  set  up  to  a  promissory  note  was,  that  it  was  exe- 
cuted on  Saturday  night,  at  about  two  o'clock,  "  which  was  Sunday, 
or  Lord's  day  ;"  the  note  having  been  given  to  procure  the  release 
from  prison  of  the  defendant's  brother ;  the  court,  under  these  cir- 
cumstances, innovating  upon  the  good  old  New  England  custom,  de- 
clared the  note  to  be  valid,  inasmuch  as  there  was  no  statute  expressly 
forbidding  it,  or  declaring  such  note  void. 

In  the  discharge  of  his  official  functions,  Judge  Ellsworth,  of  course, 
had  frequent  occasion  to  administer  the  criminal  law  to  all  grades  of 
offenders.  It  was  a  day  when  a  principal  object  of  legislation  was 
still  thought  to  be  to  suppress  vice  and  immorality,  by  statutory  enact- 
ment, as  well  as  to  restrain  the  commission  of  crime.  The  judicial 
edifice  stood  upon  nearly  the  same  foundation  where  the  fathers  of  the 
colony  had  placed  it ;  and  the  ruthless  hand  of  modern  innovation  had 
not  yet,  to  any  great  extent,  impaired  the  ancestral  structure.  Crimes 
and  misdemeanors  were  then  punished,  not  merely  by  a  beggarly  fine, 
or  a  brief  imprisonment,  but  by  a  genuine  corporal  punishment — 
whipping  on  the  bare  back,  cropping,  branding  with  a  hot  iron,  ex- 
posure with  a  halter  tied  round  the  neck,  &c.  Some  curious  cases  are 

*  This  was  the  case  of  Jack  Arabus,  who  was  a  member  of  a  company  of  blacks 
mustered  into  the  continental  service,  and  attached  to  one  of  the  Connecticut  regi- 
ments of  the  line.  After  Jack  was  discharged,  his  master,  Ives,  claimed  him  as 
his  servant.  Jack  fled  to  the  eastward,  and  his  master  having  pursued  and  over- 
taken him,  brought  him  to  New  Haven,  and  lodged  him  in  jail.  Jack  sued  out  a 
habeas  corpus,  and  on  a  summary  hearing  before  the  Superior  Court,  was  dis- 
charged, on  the  ground  that  he  was  a  freeman,  absolutely  manumitted  by  his  ser- 
vice in  the  army.— 1  Root's  Reports,  93. 

t  1  Root's  Reports,  98. 


222  LIVES  OF  THE  CHIEF-JUSTICES. 

still  to  be  met  with,  illustrative  of  the  state  of  criminal  jurisprudence 
in  Connecticut,  when  Ellsworth  administered  the  law  as  one  of  the 
judges  of  the  Superior  Court.  Thus,  for  example,  we  find  in  a  cotem- 
porary  newspaper,  the  following  sentences,  passed  at  a  session  of  the 
Supreme  Court,  at  Hartford,  in  January,  1785  :  "Moses  Parker,  for 
horse-stealing,  to  sit  on  the  wooden  horse  *  half  an  hour  ;  to  receive 
fifteen  stripes  ;  pay  a  fine  of  £10  ;  be  confined  in  gaol  and  the  work- 
house three  months  ;  and  every  Monday  morning,  for  the  first  month, 
to  receive  ten  stripes,  and  sit  on  the  wooden  horse,  as  aforesaid." 

"  Moses  Lusk,  of  Middletown,  for  counterfeiting  treasurer's  certifi- 
cate, to  receive  twenty  stripes  ;  pay  a  fine  of  £20,  and  be  confined  six 
months." 

"  Judah  Benjamin,  for  polygamy  (he  having  married  a  wife  in 
Symsbury,  when  he  had  another  living  in  Massachusetts),  to  receive 
ten  stripes  ;  be  branded  with  the  letter  A,  and  wear  a  halter  about 
his  neck  during  his  continuance  in  this  State  ;  and  if  ever  found  with 
it  off,  to  receive  thirty  stripes." 

The  punishment  of  cropping  and  branding  was  not  an  uncommon 
sentence  for  crime  at  that  time  in  Connecticut.  Thus,  in  the  case 
last  mentioned,  the  branding  was  in  the  forehead  with  the  letter  A  ; 
in  the  case  of  burglary,  cropping  and  branding  with  the  letter  B  ;  of 
counterfeiting,  whipping  or  branding  with  the  letter  C,  or  both,  &c. 

*  The  "  wooden  horse"  seems  to  have  been  an  institution  peculiar  to  Connecticut, 
and  an  essential  element  in  the  administration  of  her  penal  laws.  The  execution  of 
the  sentence  in  this  particular  case  is  described  in  the  "  Connecticut  Courant "  of 
that  day,  in  the  following  ludicrous  manner  :  "  One  of  the  rogues  was  sentenced 
to  ride  the  wooden  horse,  that  wonderful  refinement  of  punishment  in  our  modern 
statutes.  Accordingly,  on  Thursday  last  the  terrible  machine  was  prepared,  con- 
sisting of  one  simple  stick  of  wood,  supported  by  four  legs,  and  by  order  of  the 
Sheriff  placed  in  State  House  Square.  Hither  the  prisoner  was  conducted,  and 
being  previously  well  booted  and  spurred  by  the  officer,  was  mounted  on  the 
oaken  steed.  Here  he  continued  for  half  an  hour,  laughing  at  his  own  fate, 
and  making  diversion  for  a  numerous  body  of  spectators,  who  honored  him 
with  their  company.  He  took  several  starts  for  a  race  with  the  best  horses  in 
the  city,  and  it  was  difficult  to  determine  who  were  most  pleased  with  the  ex- 
hibition— the  criminal  or  the  spectators.  After  this  part  of  the  sentence  had 
been  legally  and  faithfully  executed,  the  culprit  was  dismounted,  and  led  to 
the  whipping-post,  where  the  duties  made  him  more  serious.  The  whole  was 
performed  with  great  order  and  regularity." 


OLIVER  ELLSWORTH  223 

In  Ellsworth's  time,  the  offence  of  adultery,  which  the  early  laws  of 
Connecticut  punished  with  death,*  subjected  the  offender  to  whipping 
on  the  naked  body,  branding  the  letter  A  on  the  forehead  with  a  hot 
iron,  wearing  a  halter  on  the  neck  over  the  garments  as  long  as  the  con- 
vict remained  in  the  State,  and  as  often  as  found  without  such  halter, 
to  be  whipped,  not  exceeding  thirty  stripes,  f  It  might  be  thought  that 
the  ignominy  of  the  punishment  was  sufficient  either  to  restrain  the 
commission  of  the  offence  entirely,  or  to  prevent  a  conviction  ;  such, 
however,  was  not  the  fact  ;  as  is  evident  in  Benjamin's  case.  An 
other  very  curious  case  as  reported  in  Kirby,  was  argued  before  Ells- 
worth and  his  associates  at  the  August  term  of  the  Court  1786.J  One 
William  Green  had  been  indicted  under  this  statute  and  convicted  on 
the  verdict  of  a  jury.  The  evidence  showed  that  Green  had  been 
traced  to  the  house  of  his  neighbor  Samuel  Rossetar,  and  found  in 
Rossetar's  nuptial  couch  with  "Tryphena,  the  wife  of  said  Ros- 
setar, at  a  little  after  ten  o'clock  in  the  evening," — evidence  which 
might  be  thought  strongly  circumstantial,  and  perhaps  tolerably  con- 

*  The  early  criminal  code  of  Connecticut  recognized  twelve  capital  offences,  to 
which  two  more  were  afterwards  added,  and  all  of  which  were  fouuded  on  the 
strict  precepts  of  the  Levitical  law.  Some  of  them  were  of  a  savage  and  almost 
Draconian  sternness,  as  for  example : — 

"  If  any  man  or  woman  be  a  witch,  that  is,  hath  or  consulted  with  a  familiar 
spirit,  they  shall  be  put  to  death."  Ex.  22  :  18.  Levit.  20  :  27.  Deut.  18  :  10, 11. 

"  If  any  person  shall  blaspheme  the  name  of  God  the  Father,  Son,  or  Holy 
Ghost,  with  direct,  express,  presumptuous,  or  high-handed  blasphemy,  or  shall 
curse  in  the  like  manner,  he  shall  be  put  to  death." 

The  13th  of  these  laws  provided  that  if  a  child  above  the  age  of  sixteen  should 
curse  or  smite  his  natural  father  or  mother,  he  should  be  put  to  death ;  founded 
on  Ex.  21  :  15-17.  Levit.  20  :  9. 

And  the  14th,  the  most  singular,  perhaps,  of  all,  that  a  stubborn  and  rebel- 
lious son,  "  who  will  not  obey  the  voice  of  his  father,  or  the  voice  of  his  mo- 
ther, and  when  they  have  chastened  him,  will  not  hearken  unto  them,"  might, 
if  sixteen  years  of  age,  on  complaint  of  the  parents,  be  brought  before  the  civil 
magistrate,  and  condemned  to  death.  Dtut.  20  :  18-21. 

(See  Conn.  Hist.  Collections,  p.  16. 

f  This  curious  law  remained  on  the  Statute  book,  I  believe,  lor  somo  yu-rs  after 
this  period.  In  the  revision  of  1821,  the  punishment  for  this  offence  is,  imprison- 
ment in  Newgate  prison  for  the  man,  and  in  the  county  jail  for  the  woman  for  a 
period  not  exceeding  five,  nor  less  than  two  years. 

\  The  State  vs.  Green,  Kirby's  Report,  87. 


224  LIVES  OF    THE  CHIEF-JUSTICES. 

elusive  by  a  jury  in  our  day.  Not  so,  however,  thought  the  ingenious 
counsel  for  the  prisoner,  who  now  moved  to  arrest  the  judgment  on  the 
ground  that  the  corpus  delicti  had  not  been  proved.  There  was  another 
statute  defining  in  terms  exactly  the  offence  which  the  evidence  estab- 
lished, the  punishment  of  which  was  simply  whipping  not  exceeding 
thirty  stripes  ;  and  the  efforts  of  the  prisoner's  counsel  of  course  were 
to  bring  the  case  within  the  latter  statute,  and  thus  escape  the  branding 
and  the  wearing  of  the  halter.  After  solemn  argument  and  consideration, 
the  Court  overruled  the  motion  on  the  perfectly  obvious  and  strictly  legal 
principle  that  the  jury  were  the  proper  judges  of  the  weight  of  the  evi- 
dence on  the  whole  circumstances  of  the  case,  and  their  verdict  must 
therefore  be  regarded  as  conclusive.  We  hear  no  more  of  the  unfor- 
tunate Mr.  Green  ;  but  he  doubtless  paid  the  full  penalty  of  his  trans- 
gression. 

The  proposition  to  appoint  delegates  to  a  Convention  to  frame  a 
plan  for  a  Federal  Government,  was  acceded  to  with  reluctance,  and 
almost  at  the  last  moment,  by  Connecticut.  The  Anti-Federal  party 
in  that  State  was  numerous  and  persevering,  and  up  to  within  a  few 
weeks  of  the  meeting  of  the  Convention  it  was  doubtful  what  course 
the  Assembly  would  adopt.  "  Of  Connecticut  alone  doubts  are  enter- 
tained," writes  Madison  to  Jefferson,  in  the  latter  part  of  April,  1787. 
These  doubts  however  were  soon  after  solved.  The  Assembly  de- 
termined to  appoint  delegates  to  the  Convention,  and  selected  three  of 
the  most  eminent  citizens  of  the  State,  Oliver  Ellsworth,  Roger  Sher- 
man, and  William  Samuel  Johnson. 

Ellsworth  took  his  seat  in  the  Convention  a  few  days  after  it  was 
organized  and  just  before  the  respective  propositions  of  Randolph  and 
Pinckney,  were  submitted.  For  some  weeks  he  was  a  silent,  but  not 
inattentive  listener  to  the  interesting  discussions  which  took  place  in 
that  body.  Indeed,  though  he  subsequently  mingled  freely  in  the  de- 
bates of  the  Convention,  he  never  aspired  to  act  a  prominent  and  lead- 
ing part  in  sketching  out  the  plan  of  the  new  Government.  It  was  a 
sphere  not  so  well  adapted  perhaps  to  his  talents  as  that  which  he 
had  previously,  and  which  he  subsequently,  filled.  His  mind  was  not 
inventive  ;  he  was  better  adapted  to  aid  in  the  execution,  than  in  the 
construction,  of  a  plan  of  government ; — to  organize  and  carry  out  a 
system  in  detail,  than  to  originate  it.  Hence  the  great  work  of  fram- 


OLIVER  ELLSWORTH.  225 

ing  the  new  Government,  fell  to  the  hands  of  others.  But  in  the 
arrangement  of  its  details,  in  harmonizing  its  various  branches,  and  es- 
pecially in  preserving  those  checks  and  balances  so  necessary  to  the 
success  of  the  projected  Constitution,  he  rendered  the  most  signal  and 
valuable  service.  He  came  to  the  Convention  with  two  ideas  fixed 
and  indelibly  impressed  on  his  mind.  One  of  these  was  the  preserva- 
tion of  the  identity,  the  influence,  and  the  sovereignty  of  the  respect- 
ive States  :  and  the  other,  the  engrafting  upon  the  new  system,  as  far 
as  practicable,  those  simple  democratic  principles,  which  were  embodied 
in  the  institutions  and  government  of  his  native  State.  His  entire 
course  in  the  Convention  seems  to  have  been  guided  and  influenced  by 
these  ideas.  One  of  his  earliest  acts  was  to  second  a  motion  of  his 
colleague  Sherman,  that  the  members  of  the  first  branch  of  the  National 
Legislature  be  elected  every  year,  in  opposition  to  Mr.  Rutledge,  who 
proposed  two  years,  and  Mr.  Madison,  who  was  in  favor  of  three  ; 
the  people,  he  said,  were  fond  of  frequent  elections,  and  might  be  safely 
indulged  in  one  branch  of  the  Legislature.*  Soon  after,  on  the  con- 
sideration of  the  resolution  that  "  A  national  Government  ought  to 
be  established,  consisting  of  a  Supreme  Legislative,  Executive,  and  Ju- 
diciary," he  moved  to  strike  out  the  word  national,  and  retain  the 
proper  title,  the  United  States.  "  He  could  not  admit  the  doctrine," 
he  remarked,  "  that  a  breach  of  any  of  the  Federal  articles  could  dis- 
solve the  whole.  It  would  be  highly  dangerous  not  to  consider  the 
Confederation  as  still  subsisting.  He  wished  also  the  plan  of  the  Con- 
vention to  go  forth  as  an  amendment  of  the  articles  of  the  Confedera- 
tion, since  under  this  idea  the  authority  of  the  Legislatures  could  ratify 
it.  If  they  are  unwilling,  the  people  will  be  so  too.  If  the  plan  goes 
forth  to  the  people  for  ratification,  several  succeeding  Conventions 
within  the  States,  would  be  unavoidable.  He  did  not  like  these  Con- 
ventions. They  were  better  fitted  to  pull  down  than  to  build  up  Con- 
stitutions." f  For  similar  reasons  he  opposed  the  proposition  to  pay 
the  representatives  out  of  the  national  treasury,  and  moved  to  substi- 
tute payment  by  the  States,  in  opposition  to  Hamilton,  Madison,  Wil- 
son and  others,  remarking  with  much  warmth  :  "  If  we  are  so  exceed- 
ingly jealous  of  State  Legislatures,  will  they  not  have  reason  to  be 

*  Madison  Papers,  Vol.  H.  pp.  846, 929. 
t  Madison  Papers,  Vol.  H.  pp.  908, 909. 
15 


226  LIVES  OF    THE  CHIEF-JUSTICES. 

equally  jealous  of  us  ?  If  I  return  to  my  State  and  tell  them  we  made 
such  and  such  regulations  for  a  General  Government,  because  we 
dared  not  trust  you  with  very  extensive  powers,  will  they  be  satisfied  ? 
Nay,  will  they  adopt  your  Government  ?  And  let  it  ever  be  remem- 
bered that  without  their  approbation  your  Government  is  nothing 
more  than  a  rope  of  sand.'-1  *  On  the  question  whether  the  members 
of  the  second  branch  should  be  chosen  by  the  Legislatures  of  the 
States,  Ellsworth  was  no  less  resolute  and  determined  in  his  opposi- 
tion to  the  advocates  of  a  consolidated  Government,  and  in  support  of 
the  sovereignty  of  the  States.  He  urged  the  necessity  of  maintaining 
the  existence  and  agency  of  the  State  Governments  ;  without  their 
co-operation  it  would  be  impossible  to  support  a  republican  govern- 
ment over  so  great  an  extent  of  country  ;  an  army  could  scarcely  ren- 
der it  practicable  :  "  If  the  principles  and  materials  of  our  Govern- 
ment," he  added,  "  are  hot  adequate  to  the  extent  of  these  single  States, 
how  can  it  be  imagined  that  they  can  support  a  single  government 
throughout  the  United  States  ?  The  only  chance  of  supporting  a  gen- 
eral government  lies  in  grafting  it  on  those  of  the  individual  States."  f 
Ellsworth's  solicitude  for  the  preservation  of  the  rights  and  sover- 
eignty of  the  States,  was  again  exhibited  in  a  striking  manner  in  the 
discussions  arising  on  the  great  question  which  agitated  and  divided 
the  Convention,  as  to  the  ratio  of  State  representation  in  the  National 
Legislature.  In  these  discussions  he  took  a  decided  and  prominent, 
and  it  may  be  added  a  controlling  part,  for  upon  him  mainly  rested  the 
labor  of  sustaining  the  rights  and  interests  of  the  smaller  States  against 
that  splendid  array  of  intellectual  strength  which  had  espoused  the 
other  side.  The  great  capacity  of  Ellsworth  on  this  occasion  was 
exhibited  to  the  best  advantage.  His  coolness,  his  adroitness,  his 
moderation,  the  weight  and  momentum  of  his  attacks,  the  unyielding 
pertinacity  and  firmness  of  his  resistance,  formed  altogether  an  invinci- 
ble obstacle  to  the  advocates  of  consolidation.  It  is  not  too  much  to 
say  that  to  the  resolute  efforts  and  persevering  energy  of  Oliver  Ells- 
worth, more  than  to  any  other  man  in  the  Convention,  is  the  country 

*  Yates'  Minutes,  Elliott's  Debates,  Vol.  I.  p.  478.  He  subsequently  made  an 
ineffectual  effort  to  strike  out  the  provision  that  Senators  be  paid  out  of  the  national 
treasury.  Madison  Papers,  Vol.  I.  p.  970. 

t  Madison  Papers,  Vol.  H.  pp.  957,  958. 


OLIVER  ELLSWORTH  227 

indebted  for  the  final  compromise  of  the  Constitution  which  gave  to 
each  State  an  equality  of  representation  in  the  Senate.  Upon  this 
point,  having  reluctantly  yielded  the  equality  of  representation  in  the 
other  branch,  he  stood  firm  and  immovable.  It  was  a  point  beyond 
which  compromise  itself  was  impossible  ;  nor  could  any  efforts  avail  to 
move  him  a  hair's  breadth  from  the  position  he  had  taken  in  regard  to  it. 
The  g'reatest  names  in  the  Convention  were  arrayed  against  him — 
Madison,  Hamilton,  Franklin,  Randolph,  Pinckney,  Governeur  Mor- 
ris, Rufus  King — a  phalanx,  that  it  might  have  been  supposed,  would 
have  overwhelmed  all  opposition  at  a  single  charge.  But  Ellsworth 
stood  firm  and  undismayed,  and  for  two  days  bore  up  almost  single- 
handed  and  alone  in  the  unequal  contest,  aided  only  by  the  occasional 
interposition  of  his  colleague  Sherman,  and  one  or  two  others,  and  the 
fiery  philipics  of  Mr.  Bedford,  of  Delaware,  which  served  to  divert  the 
attacks  if  they  did  not  materially  weaken  the  strength  of  their  oppo- 
nents. 

In  the  preceding  sketch  of  Judge  Rutledge,*  I  have  briefly  traced 
this  animated  and  stormy  debate  as  it  is  found  preserved  in  the 
notes  of  Mr.  Madison,  who,  himself,  took  a  prominent  part  in  it.  It 
commenced  on  the  29th  of  June,  on  Ellsworth's  motion  that  "  the  rule 
of  suffrage  in  the  second  branch  be  the  same  as  that  established  in  the 
articles  of  Confederation " — that  is,  that  each  State  have  an  equal 
vote,  a  contrary  rule  having  just  been  adopted  in  regard  to  the  first 
branch.  In  support  of  his  motion  Ellsworth  observed  :  "  He  was  not 
sorry,  on  the  whole,  that  the  vote  just  passed,  had  determined  against 
this  rule  in  the  first  branch.  He  hoped  it  would  become  a  ground  of 
compromise  with  regard  to  the  second  branch.  We  were  partly  national, 
partly  Federal.  The  proportional  representation  in  the  first  branch 
was  conformable  to  the  national  principle,  and  would  secure  the  large 
States  against  the  small.  An  equality  of  voices  was  conformable  to 
the  Federal  principle,  and  was  necessary  to  secure  the  small  States 
against  the  large.  He  trusted  that  on  this  middle  ground  a  compro- 
mise would  take  place.  He  did  not  see  that  it  could  on  any  other,  and 
if  no  compromise  should  take  place,  the  meeting  would  be  not  only  in 
vain,  but  worse  than  vain."  He  then  proceeded  in  the  discussion  of 
the  question  with  admirable  felicity  and  directness  of  argument,  and 
*  Ante,  pages  163-167. 


228  LIVES  OF   THE  CHIEF-JUSTICES. 

advanced  his  reasons  for  desiring  to  preserve  the  Federal  principle  in 
the  Constitution  of  the  national  Senate,  concluding  with  the  earnest 
and  stirring  appeal :  "Let  a  strong  Executive,  Judiciary,  and  Leg- 
islative, be  created,  but  let  not  too  much  be  attempted  by  which  all 
may  be  lost.  He  was  not  in  general  a  half-way  man  ;  yet  he  preferred 
doing  half  the  good  we  could,  rather  than  do  nothing  at  all.  The 
other  half  may  be  added  when  the  necessity  shall  be  more  fully  expe- 
rienced."* 

The  next  day  the  discussion  was  continued  with  renewed  vigor, 
Judge  Wilson  opening  the  debate  in  opposition  to  Ellsworth.  He 
maintained,  with  great  plausibility  of  argument,  that  the  Convention 
was  framing  a  government  for  men,  and  not  for  the  imaginary  beings 
called  States,  and  therefore,  the  proposed  rule  of  representation  would 
be  unjust,  as  it  would  subject  the  majority  to  be  ruled  by  the  minority. 
Ellsworth  again  took  up  the  argument,  and  replied  to  these  positions, 
in  a  train  of  reasoning  that  no  one  who  has  witnessed  the  practical 
workings  of  the  Federal  system  in  our  day,  would  be  inclined  to  con- 
trovert. "  The  power  is  given  to  the  few,"  he  says,  "  to  save  them 
from  being  destroyed  by  the  many.  If  an  equality  had  been  given 
to  them  in  both  branches,  the  objection  might  have  had  weight.  Is 
it  a  novel  thing  that  the  few  should  have  a  check  upon  the  many  ? 
la  it  not  the  case  in  the  British  Constitution,  the  wisdom  of  which  so 
many  gentlemen  have  united  in  applauding  ?  Have  not  the  House  of 
Lords,  who  form  so  small  a '  proportion  of  the  nation,  a  negative  on 
the  laws,  as  a  necessary  defence  of  their  peculiar  rights  against  the 
encroachments  of  the  Commons  ?  No  instance  of  a  confederacy  has 
existed  in  which  an  equality  of  voices  has  not  been  exercised  by  the 
members  of  it.  We  are  running  from  one  extreme  to  another.  We 
are  razing  the  foundations  of  the  building,  when  we  need  only  repair 
the  roof  »j  "•;... 

As  the  discussion  increased  in  warmth  and  intensity,  Ellsworth 
found  himself  surrounded  by  a  formidable  and  crushing  opposition. 
The  attack  from  the  heavy  batteries  of  Wilson's  learning  and  logic, 
was  followed  by  a  combined  onslaught  from  all  sides.  Every  variety  of 
weapon  known  to  the  practice  of  legitimate  discussion  was  brought 

*  Madison  Papers,  Vol.  II.  pp.  996-998. 
t  Madison  Papers,  Vol.  II.  p.  1003. 


OLIVER  ELLSWORTH.  229 

to  bear,  to  drive  him  and  those  who  stood  with  him,  from  the  position 
they  maintained  with  such  invincible  firmness — the  keen  and  unerring 
arrows  drawn  from  the  inexhaustible  quiver  of  Madison's  forensic  skill ; 
the  blunt  and  homely,  but  ponderous  weapons  of  Franklin's  common 
sense  ;  the  rapid  and  effective  artillery  of  liufus  King's  gorgeous  de- 
clamations ; — but  all  in  vain.  The  phalanx  of  the  opposition  stood 
firm,  with  Ellsworth  at  its  head,  armed  at  all  points  in  proof.  Madi- 
son, while  complimenting  the  "admirable  and  close  reasoning"  of  his 
opponent,  endeavored  in  vain  to  weaken  his  position  and  overthrow  his 
argument ;  Franklin  hinted  at  a  compromise  that  would  have  been 
substantially  a  victory,  and  enforced  his  views  by  a  practical  and  char- 
acteristic illustration,  but  to  no  purpose  ;  King  attacked,  with  elo- 
quent invective,  the  "  phantom  of  State  sovereignty,"  and  endeavored 
to  dispel  "  this  wonderful  illusion,"  without  effect.  Though  the  field 
of  argument  was  exhausted,  the  Connecticut  delegate  still  stood  un- 
convinced and  still  unyielding.  His  answer  to  all  his  opponents  was 
the  earnest  and  emphatic  announcement  which  conveyed  the  unaltera- 
ble conviction  of  his  mind  :  "  What  he  wanted  was  domestic  happi- 
ness. The  National  Government  could  not  descend  to  the  local  ob- 
jects on  which  this  depended.  It  could  only  embrace  objects  of  a 
general  nature.  He  turned  his  eyes,  therefore,  for  the  preservation 
of  their  rights  to  the  State  governments.  From  that  alone  he  could 
derive  the  greatest  happiness  he  expected  in  this  life.  His  happiness 
depended  on  their  existence,  as  much  as  a  new  born  infant  on  its  mo- 
ther for  nourishment.  If  this  reasoning  was  not  satisfactory,  he  had 
nothing  to  add  that  could  be  so."* 

The  result  of  the  day's  discussion  was  the  change  of  a  single  vote 
in  Georgia,  and  the  consequent  division  of  that  State,  and  of  all  the 
States  upon  the  main  question.  A  committee  of  conference  was 
thereupon  ordered,  whose  action  has  been  noticed  in  another  place.f 
Ellsworth  was  appointed  a  member  of  it,  but  for  some  cause,  which  I 
have  not  been  able  to  ascertain,  did  not  serve,  his  place  being  filled 
by  his  colleague,  Mr.  Sherman.  With  the  every  way  fortunate  result 
of  the  labors  of  that  committee,  however,  he  expressed  himself  fully 
satisfied.  "  Some  compromise  was  necessary,"  he  remarked,  "  and  he 
saw  none  more  convenient  or  reasonable."! 

•  Madison  Papers,  Vol.  II.  p.  1014.  J  Madison  Papers,  VoL  H.  p.  1032. 

+  Ante,  pajes  165-167 


230  LIVES  OF  THE  CHIEF-JUSTICES. 

A  full  review  of  the  acts  and  services  of  Ellsworth,  during  the  ses- 
sion of  the  Convention,  would  extend  this  sketch  to  undue  limits,  and 
I  shall,  therefore,  in  passing,  barely  glance  at  the  more  important 
matters  with  which  his  name  is  connected,  and  which  may  serve  to 
illustrate  the  nature  of  his  opinions. 

He  was  appointed  upon  the  committee  of  detail,  of  which  Rutledge 
was  chairman,  and  which  prepared  and  reported  to  the  Convention, 
the  first  official  draft  of  a  Constitution. 

He  participated  in  the  debates  on  the  constitution  of  the  Executive 
office,  and  gave  free  expression  to  his  views  in  regard  to  it.  He 
moved  that  the  Executive  be  appointed  by  electors  chosen  by  the 
Legislatures  of  the  States,  in  a  certain  specified  ratio.*  Subsequently, 
he  moved  that  the  Executive  be  appointed  by  the  Legislature,  except 
when  the  magistrate  last  chosen  shall  have  continued  in  office  the 
whole  term  for  which  he  was  chosen  and  be  re-eligible  ;  in  which  case 
he  should  be  chosen  by  electors  appointed  by  the  State  Legislatures. 
This,  he  thought,  would  at  once  provide  for  the  re-election  of  a  de- 
serving magistrate,  and  secure  his  independence  of  the  Legislature,  f 
He  favored  the  motion  of  Mr.  Wilson,  which  was  also  supported  by 
Madison,  that  the  Supreme  National  Judiciary  should  be  associated 
with  the  Executive  in  the  revisionary  power  J — a  proposition  whose 
singular  incongruity  was  not  perceived  by  some  of  the  best  minds 
in  the  Convention,  but  which  Rutledge  pointed  out  in  the  brief  but 
emphatic  sentence,  that  "the  Judges  ought  never  to  give  their  opinion 
on  a  law,  till  it  comes  before  them." 

He  was  opposed  to  the  project  of  clothing  the  Executive  with 
power  to  nominate  the  Judges.  Though  he  was  willing  to  leave  with 
the  Executive  a  negative  on  a  nomination  made  by  the  Senate,  yet 
he  preferred  to  vest  that  body,  absolutely,  with  the  power  of  appoint- 
ment. The  Executive,  he  remarked,  will  be  regarded  by  the  people 
with  a  jealous  eye  ;  and  every  project  for  augmenting,  unnecessarily, 
his  influence  will  be  disliked. § 

Ellsworth  was  a  strenuous  opponent  of  every  attempt  to  confer  on 
the  National  Legislature  the  power  to  interfere  with  the  elective 
franchise  in  the  States,  or  to  impose  unnecessary  restrictions  on  the 

*  Madison  Papers,  Vol.  II  -  p.  1149.  J  Ibid.,  Vol.  H.  p.  1162. 

t  Madison  Papers,  Vol.  H.  p.  1198.  §  Ibid.,  Vol.  H.  p.  1173. 


OLIVER  ELLSWORTH.  231 

qualifications  of  its  own  members.  To  the  suggestion  of  Gouverneur 
Morris,  proposing  a  freehold  qualification  for  electors,  he  remarks : 
"  The  right  of  suffrage  is  a  tender  point,  and  strongly  guarded  by 
most  of  the  State  Constitutions.  The  people  will  not  readily  sub- 
scribe to  the  National  Constitution  if  it  should  subject  them  to  be 
disfranchised.  The  States  are  the  best  judges  of  the  circumstances 
and  temper  of  their  own  people."*  And,  on  a  subsequent  occasion, 
he  earnestly  and  effectively  opposed  the  proposition  to  require  a  free- 
hold qualification  for  the  offices  of  President,  Judges,  and  members  of 
Congress.  It  was  better,  he  thought,  to  leave  the  whole  matter  to 
the  discretion  of  the  Legislatures  than  to  insert  a  provision  for  it  in 
the  Constitution.-}"  His  views  in  regard  to  the  qualification  of  aliens 
were  of  a  similar  nature.  He  disapproved  the  motion  of  Col.  Mason 
making  a  residence  of  seven  years  a  requisite  of  citizenship,  and  pro- 
posed in  lieu  of  it  a  residence  of  one  year,  though  expressing  his  wil- 
lingness to  assent  to  three.|  In  like  manner  he  opposed  Mr.  Morris' 
proposition  requiring  a  residence  of  fourteen  years  as  a  qualification 
for  the  Senatorship,  believing,  as  he  remarked,  that  it  would  discour- 
age meritorious  aliens  from  emigrating  to  this  country.§ 

The  simplicity  of  his  views  in  regard  to  the  organization  of  the 
government,  and  his  partiality  to  those  elementary  democratic  ideas 
which  he  had  imbibed  from  the  institutions  of  his  native  State,  were 
also  evinced  on  various  other  occasions.  Not  only  did  he  contend 
that  the  members  of  Congress  should  be  paid  by  the  respective 
States,  as  has  been  already  remarked,  and  that  the  members  of  the 
popular  branch  should  be  chosen  annually,  but  he  saw  no  difficulty  in 
carrying  out  every  branch  of  the  Federal  administration  through  the 
medium  of  frequent  elections,  and  short  periods  of  official  service. 
He  advocated  also  the  ineligibility  of  members  of  Congress  to  any 
other  office  ;||  and  even  discountenanced  the  project  of  taking  the 
yeas  and  nays  in  the  Federal  legislature,  preferring,  with  his  colleague 
Sherman,  the  primitive  New  England  mode  of  determining  a  question 

*  Madison  Papers,  Vol.  HI.  p.  1250. 
f  Madison  Papers,  Vol.  III.  p.  1284. 
J  Madison  Papers,  Vol.  IH  pp.  1258, 1259. 
§  Madison  Papers,  Vol.  IH.  p.  1273. 
||  Madison  Papers,  Vol.  HI.  p.  1323. 


232  LIVES  OF  THE  CHIEF-JUSTICES. 

•by  voices.*  On  the  proposition  to  authorize  Congress  to  emit  bilk 
on  the  credit  of  the  United  States,  he  thought  a  favorable  moment 
had  come  to  shut  and  bar  the  door  forever  against  paper  money. 
"  Paper  money/1  he  remarked,  "can  in  no  case  be  necessary.  Give 
the  Government  credit,  and  other  resources  will  follow.  The  power 
may  do  harm,  never  good."  And  to  that  singular  proposition,  favored 
by  Charles  Pinckney  and  other  influential  members,  whose  object  was 
to  vest  Congress  with  power  to  annul  the  laws  of  the  States,  he  mani- 
fested a  staunch  and  resolute  resistance — a  proposition  which  Wilson, 
carried  away  with  the  enthusiasm  of  the  moment,  considered  "  as  the 
key  stone  wanted  to  complete  the  wide  arch  of  government  we  are 
raising,"  but  which  the  more  penetrating  intellect  of  Rutledge  con- 
demned as  an  act  which  of  itself  alone  "  would  damn,  and  ought  to 
damn,  the  Constitution."f 

Mr.  Ellsworth  does  not  seem  to  have  been  present  during  nearly 
the  whole  of  the  last  month  of  the  Convention,  nor  is  his  name  found 
attached  to  the  Constitution  as  it  came  from  the  hands  of  its  framers. 
The  omission,  however,  is  entirely  accidental,  as  he  was  from  the 
moment  of  its  adoption,  the  firm  and  unswerving  friend  of  the  pro- 
jected system.  This  is  evident  from  his  letter  to  the  Governor  of  Con- 
necticut, signed  by  himself  and  his  colleague  Sherman,  enclosing  a 
printed  copy  of  the  instrument  and  explaining  its  provisions.  At  the 
close  of  this  letter,  the  delegates  remark  :  "  We  wish  it  may  meet  the 
approbation  of  the  several  States,  and  be  a  means  of  securing  their 
rights,  and  lengthening  out  their  tranquillity ."J 

The  Connecticut  Convention  assembled  about  the  1st  of  January 
following.  Ellsworth  was  of  course  a  member,  and  upon  him  mainly 
devolved  the  duty  of  defending  the  new  plan  of  government  before 
that  body.  The  task,  however,  was  not  a  difficult  one,  for  a  large 
and  controlling  majority  was  favorable  to  the  new  Constitution. § 

*  Madison  Papers,  Vol.  HI.  p.  1291. 

f  Ante,  page  165.    Madison  Papers,  Vol.  HI.  p.  1411. 

{  1  Elliot's  Debates,  p.  431. 

§  From  the  final  result  in  the  several  States  it  would  seem  that  the  compro- 
mise of  the  Constitution  was  regarded  as  a  substantial  triumph  by  the  smaller 
States.  The  votes  of  New  Jersey  and  Delaware  were  unanimous  for  the  ratifica- 
tion, while  those  of  the  three  larger  States  were  comparatively  close. 


OLIVER  ELLSWORTH.  933 

Ellsworth,  however,  relaxed  no  effort  and  spared  no  labor  in  presenting 
the  subject  fully  and  favorably  to  the  Convention.  As  one  of  the  dele- 
gates to  the  late  assembly  at  Philadelphia,  he  appropriately  opened  the 
discussion.  The  outlines  of  this  speech  are  preserved.*  It  is  exceedingly 
plain,  and  without  the  slightest  pretensions  to  rhetorical  elegance,  though 
certainly  clear,  forcible,  and  direct.  The  main  argument  is  drawn 
from  a  consideration  of  the  value  and  necessity  of  the  Union,  and  its 
adaptation  to  the  wants  and  interests  of  the  State  of  Connecticut. 
This  idea  he  enforces  by  a  brief,  though  by  no  means  striking  reference 
to  the  histories  of  ancient  and  modern  confederacies.  It  is  not  diffi- 
cult, however,  to  see  that  he  is  more  at  home  in  the  practical  exam- 
ination of  the  subject  under  the  light  of  existing  facts.  As,  for 
example,  when,  with  true  professional  tact,  and  genuine  New  England 
shrewdness,  he  presses  the  argument  on  the  score  of  interest  and  policy, 
and  urges  the  necessity  of  the  Union  on  the  ground  of  economy  as 
well  as  of  safety.  The  small  States,  he  urges,  can  alone  be  saved  by 
the  Union.  Nothing  but  the  Union  can  preserve  Connecticut  from 
the  rapacity  of  her  two  grasping  neighbors,  Massachusetts  and  New 
York  ; — and  his  reasoning  loses  not  a  particle  of  its  point  from  the 
quaint  and  homely  illustration  with  which  he  enforces  it  :  "  If  divided, 
what  is  to  prevent  the  large  States  from  oppressing  the  small? 
What  is  to  defend  us  from  the  ambition  and  rapacity  of  New  York, 
when  she  has  spread  over  that  vast  territory  which  she  claims  and 
holds  ?  Do  we  not  already  see  in  her  the  seeds  of  an  overbearing 
ambition  ?  On  the  other  side  there  is  a  large  and  powerful  State. 
Have  we  not  already  begun  to  be  tributaries  ?  If  we  do  not  improve 
the  present  critical  time — if  we  do  not  unite,  shall  we  not  be  like 
Issachar  of  old,  a  strong  ass  crouching  down  between  two  burdens"  ?f 

The  debates  of  the  Connecticut  Convention,  with  the  exception  of 
brief  sketches  of  some  half  dozen  speeches  collected  from  cotemporary 
publications,  are  lost.  Of  these  speeches  two  are  by  Ellsworth,  who 
seems  to  have  been  the  acknowledged  leader  of  the  Convention.  The 
first  of  these  was  his  speech  on  opening  the  debate  which  has  just  been 
noticed,  and  the  second,  delivered  a  few  days  after,  was  on  the  power 
of  Congress  to  lay  taxes.  The  latter  is  by  far  the  more  happy  effort, 

*  See  2  Elliot's  Debates,  pp.  189-193. 
f  2  Elliot's  Debates,  190. 


234:  LIVES   OF   THE   CHIEF-JUSTICES. 

and  may  be  regarded  as  the  best  preserved  specimen  of  its  author's 
talent  as  a  debater.  He  addresses  himself  to  the  subject  with  charac- 
teristic plainness  of  speech,  but  with  admirable  skill  and  force  of  rea- 
soning, and  conclusively  refutes  in  detail  each  of  the  objections  urged 
against  vesting  the  general  government  with  this  power.  The  argu- 
ments of  Ellsworth,  cool,  dispassioned,  ingenious,  and  searching,  were 
thoroughly  adapted  to  the  character  of  his  audience  ;  and  we  can  well 
conceive  the  truth  of  the  remark  which  has  been  made  of  them,  that 
they  left  a  deeper  impression  upon  the  minds  to  which  they  were 
addressed  than  would  have  been  produced  by  the  brilliant  efforts  of 
Ames  or  the  impassioned  appeals  of  Hamilton. 

The  Constitution  was  ratified  by  a  large  majority.  Out  of  one 
hundred  and  sixty-eight  votes  only  forty  are  recorded  in  the  negative, 
a  result  that  might  be  considered  complimentary  either  to  the  influence 
and  talent  of  Ellsworth,  or  the  good  sense  of  the  representatives  of  the 
Connecticut  people. 

As  one  of  the  foremost  men  in  the  State,  Ellsworth,  of  course,  could 
not  be  overlooked  in  the  organization  of  the  new  government.  He 
was  chosen  one  of  the  senators  of  the  United  States,  his  colleague 
being  William  Samuel  Johnson,  lately  appointed  to  an  office  which  his 
father  had  filled  before  him,  that  of  President  of  Columbia  College. 
The  first  Congress  met  at  "  Federal  Hall,"  in  the  city  of  New  York, 
on  the  4th  of  March,  1789  ;  but  to  the  mortification  of  the  more 
zealous  Federalists,  says  the  historian,  only  eight  senators  and  thirteen 
representatives  made  their  appearance.  Of  these  eight  senators  Ells- 
worth was  one,  and  patiently  waited,  from  day  to  day,  with  his  col- 
leagues, until  the  6th  April,  when  Mr.  Richard  Henry  Lee  appeared, 
making  twelve  senators  in  all,  which  formed  a  quorum  ;  the  Senate 
then  organized  and  proceeded  to  business. 

Mr.  Ellsworth's  services  in  the  Senate  through  the  seven  years  which 
comprised  the  period  of  his  connexion  with  that  body,  were  of  the  most- 
valuable  character.  It  was  indeed  a  field  of  laborious  and  important, 
as  well  as  honorable  service,  and  it  required  talents  of  a  high  order  to 
enter  upon  it  with  success  and  the  hope  of  usefulness.  The  whole 
machinery  of  the  new  government  was  to  be  put  in  motion  ;  the  sub- 
stantial frame  work  which  the  Federal  Convention  had  raised,  was  to 
be  elaborated  by  the  National  Legislature  into  the  complete  and 


OLIVER  ELLSWORTH.  235 

perfect  structure  fit  to  subserve  the  useful  purposes  of  its  creation. 
The  work  of  invention  was  now  to  give  place  to  the  labor  of  detail  ; 
theoretic  ideas  to  practical  results  ;  the  devising  of  systems  and  plans 
of  government  to  the  organization  of  the  means  of  execution.  Every 
thing  was  to  be  organized — the  civil  department,  the  diplomatic  de- 
partment, the  judicial  department,  the  treasury,  the  customs,  the  post- 
office,  the  army  and  nayy,  and,  in  short,  all  the  departments  of  admin- 
istration. And  here  Oliver  Ellsworth  found  the  true  sphere  of  his 
usefulness.  It  was  here  that  the  practical  value  of  such  talents  as  he 
possessed  was  felt  and  known.  Among  all  his  associates^  during  the 
whole  period  of  his  service  in  the  Senate,  it  would  be  difficult  to  point 
out  one  who  may  justly  claim  the  possession  of  equal  capacity  in  every- 
thing pertaining  to  the  utilities  of  legislation.  It  has  been  remarked 
that  in  no  portion  of  his  career  did  he  exhibit  a  greater  degree  of  pro- 
gressive improvement  and  a  more  continued  and  vigorous  development 
of  his  intellectual  faculties  than  during  these  years  of  his  service  in  the 
Senate.  His  labors  were  arduous,  often  embarrassing  ;  but  he  applied 
himself  to  them  with  that  plodding  perseverance  and  unwearied  indus- 
try, which  in  his  hands  were  the  potent  and  sure  weapons  of  success. 
Some  of  his  mental  labors,  during  this  period,  if  the  account  that  has 
come  down  to  us  be  correct,  were  not  only  of  a  tedious  but  even  of  a 
painful  character.  To  him  a  great  intellectual  achievement  was  not  a 
sudden  and  happy  inspiration  of  genius.  The  thought  did  not  flash 
across  his  mind  with  the  vividness  and  velocity  of  a  sunbeam  ;  it  was 
produced  only  through  the  painful  and  toilsome  process  of  mental  travail. 
While  engaged  in  these  important  investigations,  we  are  told,  he  would 
pass  whole  days,  and  sometimes  nights,  in  walking  up  and  down  his 
chamber,  absorbed  in  mental  labor.  It  was  impossible  to  divert  his 
attention  toward  any  other  object  before  he  had  thoroughly  formed  his 
conclusions  on  the  subject  which  engaged  him.  When,  at  last,  the 
question  which  had  thoroughly  excited  him  was  finally  determined,  he 
appeared  at  once  relieved  from  a  weight  of  thought,  and  was  left 
languid  and  exhausted,  as  if  he  had  been  wearied  out  by  severe  bodily 
labor.* 

When  the  first  Congress  met,  and,  indeed,  for  four  or  five  years 
afterwards,  the  Senate,  which  in  its  creation  had  excited  such  popular 

*  3  Anal.  Magazine.    Sketch  of  Ellsworth. 


236  LIVES  OF  THE  CHIEF-JUSTICES. 

jealousies  and  called  out  such  violent  attacks,  was  an  entirely  different 
body  from  what  it  subsequently  became,  and  now  is.  A  certain  degree 
of  mystery  enshrouded  its  deliberations,  and  it  maintained  a  distant 
formality  and  an  aristocratic  reserve  which  by  no  means  contributed 
to  conciliate  the  popular  good  will.  One  of  its  earliest  disagreements 
with  the  other  House  arose  upon  a  mere  point  of  etiquette,  namely,  aa 
to  what  title  or  style  should  be  used  in  addressing  the  President  of  the 
United  States.  The  title  of  "His  Excellency"  had  been  rejected  as 
not  sufficiently  respectful,  and  a  committee  of  three,  of  which  Ellsworth 
was  a  member,  subsequently  reported  that  in  their  opinion  it  would  be 
proper  to  address  him  as  "  His  Highness,  tJie  President  of  the  United 
States,  and  Protector  of  their  liberties,"  which  report  the  Senate 
seemed  inclined  to  adopt.  But  the  House  of  Representatives,  staunch  hi 
its  republican  principles,  refused  to  yield,  or  recognize  any  other  title 
for  the  President  than  that  "  expressed  in  the  Constitution."  Before 
a  committee  of  conference  could  report,  the  House  had  already  address- 
ed the  Executive  in  the  simple  and  appropriate  form  which  has  ever 
since  been  observed,  "  To  the  President  of  the  United  States  ;"  a  style 
of  address  which  the  Senate,  though  with  some  disgust,  thought  it 
expedient,  "  for  the  present,"  to  adopt. 

At  this  early  period,  too,  the  doors  of  the  Senate  Chamber  were 
closed,  and  the  debates  were  secret,  which  was  another  source  of 
popular  animadversion  and  jealousy.  This  continued  during  nearly 
the  whole  period  of  Ellsworth's  service,  and  we  are  thus  cut  off  from 
a  vast  deal  of  interesting  information  ;  for  while  the  debates  of  the 
other  branch  remain  in  a  tolerable  state  of  preservation,  nothing  but 
the  merest  skeleton  outline  of  the  Senate's  proceedings,  as  it  appears 
in  its  journal,  is  left.  We  can  therefore,  do  nothing  more  than  con- 
jecture what  may  have  been  the  eloquence  of  such  orators  as  Rufus 
King  and  Richard  Henry  Lee,  the  statesmanship  of  such  tried 
patriots  as  Charles  Carrol  and  Robert  Morris,  or  the  judicial  wisdom 
of  such  lawyers  as  William  Paterson  and  Oliver  Ellsworth.  The 
Senate  continued  to  adhere  to  this  secret  session  system  for  some  tune 
with  blind  and  persevering  tenacity.  Mr.  Monroe  made  ,an  effort  to 
have  the  sessions  public,  in  the  spring  of  1791,  but  the  motion  was 
voted  down,  as  a  similar  one  had  been  the  previous  session,  by  a  vote 


OLIVER  ELLSWORTH.  237 

of  nine  to  seventeen  Ellsworth  being  ID  the  negative.*  And  it  was 
not  until  four  years  afterwards  that  the  doors  were  ordered  to  be 
opened,  and  the  Senate  became  convinced  that  the  deliberations  of  a 
free  legislative  body  should  be  not  only  free  but  PUBLIC.  From  that 
day  the  Senate  regained  the  public  confidence,  and  continued  to 
increase  in  the  popular  esteem,  until  it  came  to  be  regarded,  as  it  now 
is,  with  marked  and  peculiar  reverence,  as  the  grand  conservative 
balance-wheel  of  the  Federal  system. 

The  secret  sessions  of  the  Senate,  and  the  meagre  outlines  of  its  his- 
tory, which  the  journal  presents,  of  course  render  it  impracticable  to 
determine  what  precise  share  Ellsworth  is  entitled  to  claim  in  most  of 
the  important  public  measures  discussed  before  that  body.  Of  one 
great  act,  however— the  organization  of  the  Federal  Judiciary — an 
act  intimately  connected  with  his  professional,  as  well  as  senatorial 
fame,  we  can  speak  with  more  certainty.  Of  this  act  Mr.  Ellsworth 
is  justly  entitled  to  claim  the  chief  paternity  ;  and  for  that  reason,  if 
no  other,  as  one  of  his  eulogists  has  very  properly  remarked,  he  ought 
to  be  spoken  of  with  peculiar  reverence  by  the  American  bar  ;  for,  it 
is  added,  though  with  a  latitude  of  expression  somewhat  too  wide,  the 
entire  Federal  system  was  made  by  him, — "  the  whole  edifice,  organiza- 
tion, jurisdiction,  and  process,  was  built  by  him  as  it  now  stands."  f 

The  Constitution  had  barely  sketched  the  outline  of  a  Federal  Judi- 
ciary ;  it  had  marked  out  the  ground  and  defined  the  fixed  boundaries 
on  which  the  superstructure  was  to  stand  ;  but  the  edifice  itself,  was 
left  to  be  reared  by  the  Legislature.  It  declared  that  the  judicial 
power  of  the  United  States  should  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  Courts  as  the  Congress  may  from  time  to  time  ordain 
and  establish,  J  thus  leaving  a  wide  margin  for  the  action  of  the  Legis- 
lature. No  part  of  the  system  had  been  regarded  with  more  distrust 
than  this.  It  was  thought  to  contain  an  element  of  power  dangerous 
to  the  sovereignty  and  existence  of  the  several  States.  The  establish- 
ment of  inferior  Courts  especially,  had  been  resisted,  even  in  the  Fed- 
eral Convention,  as  unnecessary,  §  it  being  proposed  to  establish  a  Su- 

*  Ellsworth's  vote  is  found  r<>corded  against  a  similar  proposition  in  the  old 
Congress,  a  proposition  which  aras  favored  by  Hamilton  and  Wilson, 
f  Notes  to  Wharton's  State  Trials,  p.  41. 
\  Federal  Constitution,  Art.  HI.  Section  1. 
§  See  Sketch  of  Rutledge,  ante,  p.  171. 


238  LIVES  OF  THE  CHIEF-JUSTICES. 

preme  Court  simply  as  an  appellate  tribunal  from  the  decisions  of  the 
State  Courts,  which  latter,  it  was  thought,  might  be  appropriately 
invested  with  jurisdiction  in  offences  against  the  United  States,  admi- 
ralty cases,  &c.  &c.,  as  under  the  Confederation. 

As  an  ultra  States'-rights  man,  it  might  have  been  supposed  that 
Ellsworth  would  have  favored  these  notions  in  Congress,  where  they 
re-appeared  and  were  urged  with  great  force  in  the  debate  on  the 
judiciary  bill.  This,  however,  was  not  the  case.  With  the  adoption 
of  the  Constitution  his  views  seem  to  have  become  modified,  and  from 
standing  upon  the  extreme  of  the  States'-rights  doctrine,  he  became 
the  warm  and  consistent,  but  not  ultra  advocate  of  a  liberal  construc- 
tion of  all  the  provisions  of  the  new  system.  It  was  not  many  years 
after  the  adjournment  of  the  Convention,  that  he  and  Madison  found 
themselves  occupying  in  Congress  precisely  antagonist  positions  from 
those  in  which  they  formerly  stood.  His  support  of  the  Judiciary  Act 
is  one  of  the  earliest  and  strongest  evidences  of  his  thorough  adhesion 
to  the  new  Federal  system. 

The  early  organization  of  the  Courts  seems  to  have  been  regarded  by 
Congress  as  one  of  the  most  pressing  necessities  of  the  times.  The 
next  day  after  the  opening  of  the  Senate,  and  before  the  President's 
inaugural  speech  had  been  delivered,  a  committee  of  the  Senate  was 
appointed  "  to  bring  in  a  bill  for  organizing  the  Judiciary  of  the  Uni- 
ted States."  *  Ellsworth  was  placed  at  the  head  of  this  committee. 
It  would,  perhaps,  be  unjust  to  others,  nor  is  it  necessary  for  his  repu- 
tation, to  claim  for  him  the  entire  and  unaided  construction  of  the 
judicial  system ;  for  that  able  lawyer,  his  future  associate  on  the 
bench,  Judge  Paterson,  was  a  member  of  the  committee,  and  it  is 
said  that  he  was  assisted  also  by  the  valuable  aid  of  his  colleague,  Mr. 
Johnson.  To  Ellsworth,  however,  was  assigned  the  chief  share  of  the 
labor,  and  the  draft  of  the  bill  is  undoubtedly  from  his  pen.  The  as- 
siduous industry  he  brought  to  this  duty,  and  the  promptitude  of  its 
performance,  are  evidenced  in  the  fact  that  within  three  weeks  of  the 
appointment  of  the  committee,  the  outlines  of  the  plan  were  matured. 
From  the  following  letter  of  Ellsworth,  to  his  former  colleague,  Chief- 
Justice  Law,  dated  April  30th,  1789,  the  reader  will  perceive  that  the 
system  as  it  was  first  sketched  by  the  committee,  and  as  it  came  from 

*  Senate  Journal,  April  7th,  1789. 


OLIVER  ELLSWORTH.  339 

their  hands,  was  the  same,  substantially,  as  that  which  Congress  finally 
adopted  : 

"  The  following,"  he  says,  "  are  outlines  of  a  Judiciary  system  con- 
templating before  a  committee  of  the  Senate. 

"  That  the  Supreme  Court  consist  of  six  Judges,  and  hold  two  stated 
sessions  annually  at  or  near  the  seat  of  Government. 

"  That  there  be  a  District  Court,  with  one  Judge  resident  in  each 
State,  with  jurisdiction  in  admiralty  cases,  smaller  offences,  and  some 
other  special  cases. 

"That  the  United  States  be  divided  into  three  circuits.  That  a 
court  be  holden  twice  annually  in  each  State,  to  consist  of  two  Judges 
of  the  Supreme  Court  and  the  District  Judge.  This  Court  to  receive 
appeals  in  some  cases  from  the  District  Court,  to  try  high  crimes,  and 
have  original  jurisdiction  in  law  and  equity,  in  controversies  between 
foreigners  and  citizens,  and  between  citizens  of  different  States,  and 
where  the  matter  in  dispute  exceeds  five  hundred  dollars  ;  and  to  grant 
appeals  to  the  Supreme  Court  except  as  to  facts,  where  the  matter  in 
dispute  exceeds  two  thousand  dollars."  * 

The  committee,  through  Mr.  Richard  Henry  Lee,  reported  the  bill 
to  the  Senate  on  the  12th  of  June.  Though  it  encountered  in  that 
body  a  searching  discussion,  it  had  a  comparatively  easy  passage.  Of 
twenty  votes  recorded  on  taking  the  final  question,  six  only  are  in  the 
negative,  and  among  these  it  is  singular  enough  to  find  the  name  of 
Mr.  Lee,  himself,  f  But  a  vigorous  and  formidable  opposition  sprang 
up  in  the  house,  headed  by  Livermore,  of  New  Hampshire,  Jackson,  of 
Georgia,  and  Burke,  of  South  Carolina,  which,  for  a  time,  at  least, 
threatened  to  defeat  the  bill.  The  debate  was  characterized  by  great 
ability,  and  no  small  degree  of  warmth.  The  unaccountable  jealousies 
entertained  of  the  entire  judicial  system,  were  stimulated  and  excited, 
rather  than  soothed  by  discussion  ;  and  we  can  read  in  our  day  with  a 
feeling  little  short  of  astonishment  such  exaggerated  expressions  as 
those  with  which  Mr.  Livermore  closed  one  of  his  ablest  speeches : 
"  For  my  part,  I  contemplate  with  horror  the  effects  of  the  plan.  I 
think  I  see  a  foundation  laid  for  discord,  civil  war,  and  all  its  coucom- 

*  This  and  the  letter  from  which  the  subsequent  extract  is  taken,  are  published 
from  the  original  manuscript  by  Mr.  Wharton,  in  his  Notes  to  the  State  Trials. 
f  Journal  of  the  Senate,  J-ily  17th,  1789. 


24:0  LIVES  OF  THE  CHIEF-JUSTICES. 

itants.  To  avert  these  evils  I  hope  the  house  will  reject  the  proposed 
system."  * 

During  this  period  of  suspense,  Ellsworth  relaxed  no  effort  to  secure 
the  final  passage  of  the  bill.  On  the  fourth  of  August  he  writes  to 
Judge  Law  :  "  I  consider  a  proper  arrangement  of  the  judiciary,  how- 
ever difficult  to  establish,  among  the  best  securities  the  government 
will  have,  and  question  much  if  any  will  be  found  at  once  more  eco- 
nomical, systematic  and  efficient,  than  the  one  under  consideration.  Its 
fate  in  the  House  of  Representatives,  or  in  the  opinion  of  the  public,  I 
cannot  determine.  But  being,  after  a  long  investigation,  satisfied  in 
my  own  mind  of  its  expediency,  I  have  not  hesitated,  nor  shall  I,  to 
give  it  the  little  support  in  my  power." 

Fortunately,  the  majority  in  Congress  entertained  similar  views. 
The  bill  as  it  came  from  the  Senate  was  supported,  not  by  the  votes 
only,  but  by  the  active  efforts  of  such  men  as  Benson,  Sedgwick, 
Ames,  Madison,  and  Gerry.  It  passed  the  House  of  Representatives 
on  the  17th  September,  and  soon  after,  by  the  signature  of  the  Presi- 
dent, became  a  law.  The  judicial  structure  thus  raised  has  stood  the 
test  of  time  from  that  day  to  this  ;  for  it  remains  in  its  essential  fea- 
tures the  same  that  it  came  from  the  hands  of  its  founders.  The  only 
substantial  and  radical  change  ever  made  in  it  was  in  the  last  year  of 
Mr.  Adams'  administration,  when  a  batch  of  new  officials  and  tribunals 
was  created,  and  the  Judges  of  the  Supreme  Court,  relieved  of  Circuit 
duty,  were  required  simply  to  sit  as  an  Appellate  Court.  But  the 
change  was  temporary  only.  During  the  very  next  year,  under  the 
auspices  of  Jefferson's  Administration,  the  law  was  repealed  and  the 
system  restored  to  its  original  simplicity. 

The  scheme  of  Hamilton  for  funding  the  debt  of  the  United  States 
found  in  Ellsworth  a  vigorous  and  able  auxiliary.  He  was  upon  the 
select  committee  to  whom  it  was  referred,  and  rendered  valuable  ser- 
vice in  amending  and  perfecting  the  plan,  until  it  had  assumed  the 
shape  in  which  it  finally  passed  the  Senate.  It  appears,  however, 
that  he  differed  from  Hamilton  in  one  or  two  important  particulars. 
He  was  of  opinion  that  it  was  not  expedient  to  attempt  to  fund  the 
debt  at  a  higher  rate  of  interest  than  four  per  cent.,  as  this  would 
answer  the  expectations  of  the  creditors  and  all  the  requirements 
*  Debates  of  Congress,  Vol.  I.  p.  814. 


OLIVER  ELLSWORTH.  £41 

of  substantial  justice.  He  was  also  dissatisfied  with  the  Secretary's 
proposal  of  leaving  one-third  of  the  debt  unfunded  for  ten  years,  as 
this  measure  he  thought  would  tend  to  encourage  speculations,  and 
would  leave,  after  ten  years,  a  great  burden  upon  the  country,  with 
little  advantage  to  the  creditors  ;  and  these  opinions,  we  are  told,  were 
supported  by  him  "  with  all  that  boldness  and  reason  which  gave  him 
a  predbminant  influence  in  the  Senate ;  "*  and  also  with  so  much  of 
energy  and  success  as  finally  to  secure  a  compromise.  It  should  be  added, 
that  he  was  warmly  in  favor  of  that  part  of  Hamilton's  plan,  which 
proposed  the  funding  of  the  debts  of  the  States  with  the  foreign  debt, 
a  proposition  which  had  been  rejected  in  the  other  house  ;  and  he 
pressed  this  matter  with  so  much  vigor  that  the  Senate  finally  agreed, 
by  a  small  majority,  to  unite  such  portion  of  State  debts  as  should 
be  assumed,  in  the  general  funding  bill,  and  so  consolidate  the  whole 
in  one  system,  f 

Mr.  Ellsworth  also  seconded,  and  materially  aided  in  carrying  out, 
Hamilton's  plan  for  the  incorporation  of  a  Bank  of  the  United  States. 
He  was  one  of  the  select  committee  to  whom  the  matter  was  origin- 
ally referred,  and  which  reported  the  bill.  The  plan,  after  some  dis- 
cussion, passed  the  Senate  by  a  large  majority.!  But  it  encountered, 
in  the  House  of  Representatives,  a  powerful  and  determined  opposi- 
tion under  the  well  directed  lead  of  Madison,  §  Giles,  and  Jacksou, 
who  demonstrated  both  the  unconstitutionality  and  inexpediency  of  the 
institution.  After  one  of  the  most  animated  and  brilliant  debates 
which  had  yet  occurred  in  that  body — enlivened  by  the  splendid  elo- 
quence of  Ames  on  the  one  side,  and  the  logical  reasoning  of  Madison" 

*  Letter  from  Secretary  Wolcott,  July  20th,  1790.    1  Gibbs'  WoL,  49.  , 

t  Journal  of  the  Senate,  July  16th,  1790.  j> 

J  The  Journal  does  nor  show  the  exact  vote  on  the  passage  of  the  bill.  The 
motion  to  limit  the  term  of  incorporation  to  the  year  1801  instesKl  of  1811,  pto- 
bably  exhibits  the  strength  of  the  opposition— six  to  sixteen,  Mr.  Monroe  being 
one  of  the  minority.  See  Journal  of  January  20th,.  1191*  • .  u*»  v 

§  Mr.  Madison's  views  of  strict  construction  on  the  subject  of  .-the.  JJanlf  wore 
no  recent  convictions.  He  had  opposed  Mr.  Morris's  Bank  of  North  America,  Nth'iCh 
he  called  "  the  child  of  necessity,"  on  the  ground  that  it  was  unauthorized  by  the 
articles  of  confederation.  See  Madison's  Speech  on  the  Bank,  2  Congressional 
Debates,  2011. 

16 


242  LIVES  OF    THE  CHIEF-JUSTICES. 

on  the  other — the  advocates  of  the  bank  carried  the  day  by  a  ma- 
jority of  nineteen  votes. 

Under  the  classification  of  Senators,  as  required  by  law,  Ellsworth 
drew  for  the  shortest  term — the  period  of  two  years.  At  the  expira- 
tion of  that  time  he  was  again  handsomely  complimented  by  his  na- 
tive State,  in  a  re-election  to  the  Senate.  He  took  his  seat  at  the 
opening  of  the  next  session,  and  preserved  his  connexion  with  that 
body  unbroken  until  his  resignation  in  the  Spring  of  1796,  on  his  ap- 
pointment to  the  Chief-Justiceship. 

The  passage  of  the  Bank  Bill  contributed  in  no  inconsiderable 
degree,  as  we  are  assured  on  the  highest  cotemporary  authority,  to 
the  complete  organization  of  those  distinct  and  visible  parties,  which, 
in  their  long  and  dubious  conflict  for  power,  have  since  shaken  the 
United  States  to  their  centre.*  It  left  the  two  most  active  intellects 
of  the  country,  Jefferson  and  Hamilton,  in  permanent  antagonism  in 
the  cabinet  of  Washington,  f  and  it  placed  the  name  of  Ellsworth 
in  opposition  to  that  of  Monroe  on  the  record  of  the  Senate.  The 
respective  positions  thus  taken  were  never  changed.  Subsequent 
events,  particularly  those  growing  out  of  the  French  Revolution, 
served  to  render  the  line  of  division  more  definite  and  distinct.  Ells- 
worth attached  himself  with  all  the  ardor  of  a  thorough  conviction, 
but  without  that  intemperance  of  party  zeal  which  some  of  his 
associates  exhibited,  to  the  Federal  party.  With  all  their  measures, 
during  his  continuance  in  the  Senate,  his  name  is  prominently  con- 
nected. He  gave  to  Washington's  administration  a  sober,  but  cordial 
and  energetic  support.  He  approved  and  sustained  the  proclama- 
tion of  neutrality.  He  was  one  of  those  who  dreaded  what  he 
called  the  "baleful  ascendancy  of  French  influence,"!  and  was 
ardently  in  favor  of  cultivating  friendly  relations  with  England. 

*  Marshall's  Life  of  Washington,  Vol.  H.  p.  206. 

t  It  is  scarcely  necessary  to  remind  the  reader  that  the  cabinet  of  Washington 
divided  on  the  question  of  the  constitutionality  of  the  Bank,  Hamilton  and 
Knox  being  in  favor,  and  Jefferson  and  Randolph  opposed,  the  President  siding 
with  the  former.  Precisely  the  same  division  occurred  on  the  question  of  the  con- 
stitutionality of  the  bill  apportioning  the  Representatives,  with  the  exception  that 
General  Knox  was  rather  undecided.  This  time,  however,  the  President  acceded 
to  the  views  of  Jefferson,  and  vetoed  the  bill. 

t  See  his  letter  to  Oliver  Wolcott,  sen,,  April  5th,  1794.     1  Gibbs'  Wolcott,  134. 


OLIVER  ELLSWORTH.  243 

He  approved  the  mission  of  Mr.  Jay,  and  even  spoke  of  it  with 
some  degree  of  exaltation,  as  "  a  mortifying  movement  to  those  who 
have  endeavored  by  every  possible  means  to  prevent  a  reconciliation 
between  this  country  and  Great  Britain."  *  He  also  warmly  ap- 
proved the  treaty  itself,  and  voted  for  its  confirmation,  and  even  cen- 
sured the  delay  of  the  President  in  ratifying  it.  "  If  the  President 
decides  wrong,"  he  writes,  in  regard  to  this  subject,  "  or  does  not 
decide  soon,  his  good  fortune  will  forsake  him."f  And  again,  a  few 
days  after,  when  it  had  become  known  that  the  President  had  ap- 
proved the  treaty  :  "  I  am  glad  the  President  has  done  at  last  what  I 
am  unwilling  to  believe  he  ever  hesitated  about,  and  the  delay  of 
which  has  not  been  without  hazard  and  some  mischief.  The  crisis 
admits  not  of  the  appearance  of  indecision,  and  much  less  of  steer- 
ing any  course  but  one."  J 

As  the  warm  and  ardent  friend  of  the  Jay  treaty,  of  course  Ells- 
worth was  one  of  those  who  disapproved  the  nomination  of  Rutledge 
to  the  vacant  Chief-Justiceship  of  the  Supreme  Court.  This  nomination 
indeed  had  struck  the  leaders  of  the  Federal  party  with  astonishment  and 
dismay.  For  a  moment  their  confidence  seemed  to  be  shaken,  not 
in  the  motives,  but  in  the  discretion  and  judgment  of  the  President. 
The  violence  of  language  used,  and  the  extreme  action  recommended, 
by  some  of  his  indiscreet  friends,  are  certainly  lamentable  exhibitions 
of  a  blind  and  over-zealous  party  spirit.  "  A  driviller  and  a  fool 
appointed  to  be  Chief-Justice  ! "  exclaims  a  member  of  the  President's 
cabinet.  §  "  Faction  is  to  be  courted  at  so  great  a  sacrifice  of  con- 
sistency!" responds  another  influential  Federal  politician,  ||  and  a  third 
counsels  the  Senate  to  stand  firm,  and  correct  the  President's  "  error 
of  judgment,"  by  rejecting  the  nominee.^]"  It  must  be  added  that 

*  Letter  to  Wolcott,  April  16th,  1794.     1  Gibbs'  Wolcott,  135. 

t  Letter  to  Wolcott,  jr.,  August  15th,  1795.     1  Gibbs'  Wolcott,  225. 

}  Letter  to  Wolcott,  Jr.,  August  20th,  1795.  1  Gibbs'  Wolcott,  226.  la  this 
letter  he  congratulates  his  correspondent  on  the  favorable  prospects  of  the  treaty 
in  New  England.  As  to  New  Hampshire,  he  remarks  playfully,  he  infers,  "  that 
brother  Langdon's  argument,  that  '  'tis  a  damned  thing  made  to  plague  the 
French,'  has  by  repetition  lost  its  power." 

§  Wolcott,  Jr.,  letter  to  Hamilton,  July  30th,  1795. 

||  Chauncey  Goodrich,  letter  to  Wolcott,  July  30th,  1795. 

IF  See  preceding  sketch  of  Rutledge,  pp.  180, 181-186 


<}44  LIVES  OF  THE  CHIEF-JUSTICES. 

Ellsworth  was  by  no  means  exempt  from  these  warm  party  feelings, 
but  he  never  suffered  them  to  manifest  themselves  in  violent  action, 
or  to  drive  him  from  that  dignified  propriety  of  language  and  conduct 
which  governed  his  political  as  well  as  his  private  intercourse.  "If 
the  evil  is  without  remedy,"  he  quietly  remarks,  in  a  letter  to  Secretary 
Wolcott,  about  this  time,  "  we  must,  as  in  other  cases,  make  the  best 
of  it.  Believe  not,  my  dear  sir,  that  I  have  feelings  on  this  occasion 
which  are  not  common  to  all  well  disposed  friends  of  the  government."  * 

Rutledge  rejected,  the  confidence  of  the  Federalists  iu  the  Presi- 
dent returned  ;  the  entente  cordiale  was  restored  ;  it  had  become  a 
matter  of  entire  certainty  on  their  part  that  the  office  would  now  be 
properly  filled  ;  no  Jacobin,  or  opponent  of  the  Jay  treaty,  no  Demo- 
crat, or  other  disorderly  or  improper  person,  would  be  selected  to  fill 
the  important  station  of  Chief-Justice  of  the  "United  States.  At  this 
time,  it  is  to  be  recollected,  the  two  great  parties  into  which  the  coun- 
try was  divided  had  assumed  distinct  form  and  shape,  and  had  entered 
fully  armed  into  the  political  arena.  Washington  could  be  said  strictly 
to  belong  to  neither.  He  endeavored  to  hold,  with  a  firm  and  steady 
hand,  the  balance  equally  poised  between  both  ;  yet  the  close  ob- 
server might  even  then  see  that  the  Federal  scale  slightly  predominated. 
Like  a  parent,  striving  to  govern,  with  wisdom  and  strict  impartiality, 
two  rebellious  sons,  he  could  not  entirely  conceal  his  partiality  for  the 
elder  born.  He  selected,  as  President  Adams  rather  strongly  expresses 
it,  "  a  multitude  of  Democrats  and  Jacobins "  for  office  ;  but  it  was  plain 
to  be  seen,  that  his  most  trusted  officials  were  drawn  from  the  op- 
posite ranks.  He  conferred  upon  Monroe  and  Jay,  almost  at  the 
same  time,  high  diplomatic  trusts,  and  though  the  former  enjoyed  his 
entire  respect  and  esteem,  the  latter  carried  with  him  also  his  unre- 
served confidence.  His  judgment  appreciated,  as  they  deserved,  the 
great  abilities  and  valuable  services  of  Jefferson  in  the  cabinet,  but  it 
was  not  difficult  to  see  that  with  Hamilton  were  lodged  the  affections 
of  his  heart. 

The  rejection  of  Rutledge,  therefore,  produced  no  permanent  es- 
trangement or  misunderstanding  between  the  President  and  his 
Federal  friends,  particularly  as  he  soon  after  sent  into  the  Senate  the 
name  of  Mr.  Gushing,  the  senior  Judge  in  commission  then  on  the 
*  2  Gibbs'  Wolcott,  p.  226. 


OLIVER  ELLSWORTH.  245 

bench,  for  the  office  of  Chief-Justice.  The  nomination  was  at  once 
ratified  with  entire  unanimity.  But  that  excellent  and  exemplary 
gentleman  declined  to  accept  the  presidency  of  the  court,  preferring 
to  retain  the  less  ambitious  and  less  prominent  pose  of  an  associate.* 

*  The  first  intimation  Judge  Gushing  received  of  his  appointment  was  at  a  diplo- 
matic dinner  given  by  the  President.  In  seating  the  guests,  Washington,  with 
the  stately  etiquette  of  that  day,  bowed  to  Judge  C.,  and  pointing  to  a  vacant 
place  near  him,  said,  "  The  Chief-Justice  of  the  United  States  will  please  take  the 
seat  on  my  right."  The  next  day  he  received  his  commission.  This  anecdote,  I 
am  informed  by  the  friend  who  communicates  it,  has  been  preserved  on  the  rela- 
tion of  Judge  Gushing  himself. 

The  fact  that  Judge  C.  actually  presided  in  the  Supreme  Court,  and  was  also 
tendered  the  commission  of  Chief-Justice,  would  have  authorized  me  perhaps  to 
assign  him  a  more  prominent  place,  and  to  introduce  a  more  extended  notice  of 
him  in  this  work.  For  the  present,  however,  I  must  confine  myself  to  the  limits 
of  the  following  brief,  but  interesting  sketch,  which  has  been  kindly  furnished  me 
by  Charles  C.  Paine,  Esq.,  of  Boston,  a  family  connexion  of  Judge  Gushing,  and 
who  has  come  into  possession  of  his  papers. 

WILLIAM  GUSHING  was  born  in  Scituate,  Massachusetts,  March  1,  1732.  His 
family  was  of  ancient  and  respectable  English  descent,  and  came  over  in  1636  ; 
this  branch  of  it  soon  afterwards  settled  in  Scituate  on  the  estate  on  which  he 
was  born,  and  which  he  afterwards  inherited.  His  father  and  grandfather  were 
Judges  of  the  Superior  Court,  and  his  great-grandfather  an  assistant  of  the 
colony  of  Plymouth,  a  Judge,  and  one  of  the  commissioners  for  uniting  the  two 
colonies  of  Plymouth  and  Massachusetts. 

He  graduated  at  Harvard  College  in  1751,  studied  law  with  Jeremy  Gridley, 
Attorney-General ;  commenced  practice  in  Scituate,  in  1760  ;  was  appointed  Judge 
of  Probate  for  Lincoln  county,  (now  in  Maine,)  and  removed  to  Pownalborough,  on 
the  Kennebec  river  and  practiced  there  with  great  success.  His  brothers,  Charles 
and  Roland,  also  educated  at  Harvard  College  and  to  the  bar,  both  practised  in 
Maine. 

In  1772,  upon  the  resignation  by  his  father  of  the  office  of  Judge  of  the  Superior 
Court,  which  he  had  held  for  over  28  years,  he  was  appointed  to  the  vacancy, 
and  thereupon  returned  to  Scituate,  where  he  resided  for  the  rest  of  his  life. 

From  this  time  to  the  Revolution,  in  1775,  such  were  the  dignity  and  amenity  of 
his  character  that  he  enjoyed  the  respect  and  friendship  of  the  principal  men  of 
both  parties,  his  associates  on  the  bench,  the  Governor,  and  others  of  the  royalists, 
being  friends  of  his  father,  while  his  relative,  Thomas  Gushing,  the  Speaker  of  the 
House.  Robert  Treat  Paine,  and  others  of  the  leading  patriots,  were  his  own 
friends.  He  was  the  only  member  of  the  bench  who  adhered  to  the  American 
side,  and  upon  the  re-organization  of  the  Supreme  Court  in  1775  was  made  Chief- 
Justice,  which  post  he  held  till  1789,  during  the  independent  sovereignty  of  thn 


246  LIVES  OF  THE  CHIEF^USTICES. 

It  was  now  exceedingly  doubtful  upon  whom  the  choice  of  the  Pre- 
sident would  fall.  Wilson  was  the  oldest  Judge  in  commission  after 
Judge  Gushing,  and  it  might  have  been  supposed  was  next  in  the  line  of 

State.  In  1780  he  was  one  of  the  committee  for  revising  the  laws  of  the  State.  In 
1783,  the  great  question,  whether  slavery  was  abolished  in  the  State  by  the  lan- 
guage of  the  Bill  of  Rights  declaring  that  all  men  are  born  free  and  equal,  came 
before  the  court  on  an  indictment  of  the  master  for  an  assault  on  his  slave  ;  in  his 
charge  to  the  jury  he  held  that  it  was  so — and  thus  slavery  in  the  State  came  to 


The  interval  from  1782  to  1788  was  a  period  of  constant  difficulty  and  danger 
to  the  Judges.  The  people,  unable  to  meet  their  debts  and  taxation,  assembled  in 
armed  mobs  around  the  court  houses  and  endeavored  to  prevent  the  sittings  of  the 
courts,  until,  finally,  Shay's  rebellion  broke  out.  The  judges,  on  approaching  the 
court  houses,  not  unfrequently  were  obliged  to  pass  through  these  infuriated 
masses,  and  the  unflinching  firmness  with  which  they  never  failed  to  perform  their 
duties  was  witnessed  with  admiration. 

In  1785  he  was  requested  to  be  a  candidate  for  Governor,  as  he  was  again  in 
1794,  but  on  both  occasions  he  declined.  In  1788  he  was  Vice-President  of  the 
Convention  for  ratifying  the  Constitution  of  the  United  States,  presided  most  of 
the  time,  and  gave  his  support  to  the  adoption  of  it.  Upon  the  organization  of 
the  Supreme  Bench  of  the  United  States,  in  1789,  he  was  appointed  judge  of  it, 
next  to  the  Chief-Justice. 

After  Jay's  departure  for  England  in  1794,  he  presided  in  the  Court,  and  in 
1796,  upon  Jay's  resignation,  he  was  nominated  by  Washington  as  Chief-Justice, 
and  at  a  time  of  great  party  exasperation  was  unanimously  confirmed  by  the 
Senate.  This  appointment  was  made  without  his  knowledge,  and  was  an  entire 
surprise  to  him. 

After  holding  the  commission  for  about  a  week  he  returned  it,  though  Washing 
ton  solicited  him  to  keep  it,  and  was  never  willing  to  appoint  any  other  over  him. 
He  continued  on  the  bench  till  his  death. 

He  was  of  good  height,  graceful,  and  of  great  personal  dignity;  his  purity  and 
simplicity  of  character  and  urbanity  of  manners  fascinated  every  one,  and  at  the 
same  time  he  had  unbending  firmness  and  an  integrity  which  inspired  universal 
confidence.  He  was  always  cheerful,  and  fond  of  social  enjoyments.  He  pos- 
sessed a  remarkably  strong  and  clear  mind ;  was  a  man  of  great  abilities  and 
learning,  and  profoundly  read  in  the  law.  As  a  judge  he  commanded  the  entire 
respect  and  confidence  of  the  Massachusetts  bar,  while  at  the  head  of  the  State 
bench,  and  of  the  bar  generally  in  the  federal  court.  He  was  a  great  reader  of 
works  of  history  and  literature,  and  a  liberal  and  fervent  Christian. 

In  1774  he  married  Miss  Hannah  Phillips,  of  Middletown.  Conn.,  a  lady  much 
younger  than  himself,  and  of  great  accomplishments,  who  was  his  constant  com- 
panion in  all  his  journeyings,  and  survived  him  many  years. 


OLIVER  ELLSWORTH.  247 

succession.  But  public  rumor  seemed  rather  to  point  to  Judge  Pater- 
son,  though  no  one  could  venture,  with  certainty,  to  predict  the  final 
action  of  the  President.  "  Mr.  Paterson,  of  New  Jersey,  is  thought 
of,"  writes  Mr.  Tracy  to  the  senior  Wolcott,*  "  but  our  President  keeps 
his  own  counsel  tolerably  well  till  he  acts  officially." 

The  name  of  Ellsworth  does  not  seem  to  have  been  mentioned  in 
connection  with  the  office,  and  it  was,  doubtless,  with  as  much  sur- 
prise to  himself  as  to  any  other  person,  that  he  received  the  informa- 
tion that  the  choice  of  the  President  had  fallen  on  him.  His  nomina- 
tion was  confirmed  at  once  by  the  Senate  with  gratifying  unanimity. 
It  had  not  been  sought  by  him,  and  it  was  accepted  with  reluctance. 
This  is  evident  from  his  letter  to  Governor  Wolcott,  communicating 
the  intelligence,  and  his  resignation  of  the  office  of  Senator.  "  It  is, 
Sir,  my  duty  to  acquaint  you,"  he  says,  "  that  I  have,  with  some 
hesitation,  accepted  an  appointment  in  the  judiciary  of  the  United 
States,  which,  of  course,  vacates  my  seat  in  the  Senate.  This  step,  I 
hope,  will  not  be  regarded  as  disrespectful  to  a  State  which  I  have  so 
long  had  the  honor  to  serve,  and  whose  interests  must  forever  remain 
precious  to  my  heart."f  The  step  was  by  no  means  regarded  as  dis- 
respectful ;  on  the  contrary,  the  appointment  was  considered  by  the 
friends  of  Ellsworth  as  a  deserved  compliment  to  his  abilities  and  in- 
tegrity, and  as  a  matter  of  just  pride  to  the  State.  "  Mr.  Ellsworth's 
appointment,"  says  Governor  Wolcott  to  Trumbull,  "  will  be  satisfac- 
tory to  all  who  are  willing  to  be  pleased.  If  our  country  shall  be 
saved  from  anarchy  and  confusion,  it  must  be  by  men  of  his  character."^ 

Chief-Justice  Ellsworth's  commission  was  dated  on  the  4th  of  March, 

His  brother,  Roland,  died  young  and  unmarried.  His  brother  Gen.  Charles 
Gushing,  removed  to  Boston,  and  married  a  sister  of  Governor  Sumner,  and  a 
daughter  married  Charles  Paine,  son  of  Robert  Treat  Paine.  In  these  families 
Judge  and  Mrs.  Gushing  enjoyed  their  chief  society  and  intercourse  when  at  home. 
Judge  Gushing  never  had  issue.  He  died  on  the  13th  of  September,  1810,  in  the 
79th  year  of  his  age. 

*  1  Gibbs'  Wolcott,  299.  This  was  not  the  only  time  Mr.  Paterson  was 
"  thought  of."  In  the  appointment  of  a  successor  to  Ellsworth  it  was  supposed 
he  would  be  nominated,  and  the  President  was  censured  for  passing  by«o/rf 
friends,"  to  reward  "  dear  ones."  See  subsequent  sketch  of  C.  J.  Marshall. 

f  1  Gibbs'  Wolcott,  306. 

+  1  Gibbs'  Wolcott,  322. 


248  LIVES  OF    THE  CHIEF-JUSTICES. 

1796.  He  took  his  seat  on  the  bench  the  8th  of  the  same  month,  and 
during  the  then  February  session  of  the  court.  The  morning  on 
which  he  was  sworn  into  office,  the  argument  of  the  important  case  of 
Hylton  vs.  the  United  States*  was  in  progress,  one  of  the  earliest  cases 
involving  a  question  of  constitutional  law  ever  discussed  in  the 
Supreme  Court.  The  point  upon  which  the  discussion  turned  was  the 
constitutionality  of  the  law  of  Congress  of  1794,  laying  duties  upon 
carriages  for  the  conveyance  of  persons.  It  was  maintained  that  this 
was  a,  direct  tax,  and  could  not  be  laid  except  in  proportion  to  the 
census,  or  enumeration  of  inhabitants  of  the  United  States.  Alexan- 
der Hamilton  maintained  the  constitutionality  of  the  act  with  that 
power  and  originality  and  vigor  of  argument  which  he  never  failed  to 
display  on  all  great  occasions  ;f  and  he  succeeded  by  the  unanimous 
vote  of  all  the  judges  who  participated  in  the  decision,  the  Chief-Jus- 
tice delivering  no  opinion,  as  he  had  not  heard  the  whole  of  the 
argument.  It  is  worthy  of  remark  that  the  sole  question  submitted  to 
the  Court  was,  is  the  law  of  Congress  unconstitutional  and  void  ?  So 
Judge  Chase  himself  considered  it,  although  the  Supreme  Court  had 
not  yet  decided  that  it  possessed  the  power  to  declare  an  act  of 
Congress  void,  and  the  same  judge,  in  a  subsequent  case,  four  years 
after,  doubted  where  the  power  resided  to  declare  such  an  act  void.  J 

The  case  of  Ware  vs.  Hylton  et.  «Z.§  was  argued  and  determined  at 
the  same  session  of  the  court — a  case  deciding  the  important  principle 
that  a  statute  passed  during  the  revolution,  by  the  Virginia  Legislature, 
confiscating  the  debts  of  British  subjects,  was  annulled  by  the  treaty 
of  peace,  so  as  to  enable  the  foreign  creditor  to  recover  his  debt  in 

*  3  Dallas  Reports,  171. 

t  Hamilton  was  in  truth  at  the  bar,  as  Jefferson  had  declared  him  to  be  else- 
where, "  a  Colossus ;"  nor  was  his  celebrated  speech  in  the  case  of  the  People  vs. 
Croswell,  in  the  New  York  Supreme  Court  in  1804 — which  a  competent  critic  has 
declared  to  have  been  "  greater  than  any  other  man  who  ever  lived  in  the  State, 
was  intellectually  competent  enough  to  make" — by  any  means  a  solitary  example 
of  that  brilliant  genius,  and  those  inexhaustible  intellectual  resources  with  which 
he  was  endowed.  His  occasional  efforts  in  the  federal  tribunals  might  compare 
favorably  with  it  in  all  respects  ;  and  one  of  these  was  his  argument  in  this  very 
case  of  Hylton  vs.  the  United  States." 

t  Cooper  vs.  Telfair,  4  Dallas  Reports,  14,  and  see  note  to  case  of  Marbury  vs. 
Madison,  in  subsequent  sketch  of  Chief- Justice  Marshall. 

§  3  Dallas'  Reports,  199. 


OLIVER  ELLSWORTH.  249 

the  federal  courts,  notwithstanding  such  debt  had  been  paid  into  the 
loan  office  of  Yirginia,  under  authority  of  the  State  law.  It  was 
upon  the  argument  of  this  case  that  Ellsworth's  illustrious  successor 
on  the  bench — then  in  the  prime  of  vigorous  manhood,  and  the  full 
strength  of  his  splendid  intellectual  faculties — appeared  for  the  first 
time  .at  the  bar  of  that  tribunal  over  which  he  subsequently,  for  so 
many  years,  presided,  and  in  a  single  argument,  whose  masterly 
analysis,  and  powerful  and  comprehensive  logic  excited  the  admiration 
of  the  bench  as  well  as  the  bar,  achieved  a  fame  as  a  lawyer  that  was 
exceeded  only  by  that  which  he  afterwards  won  as  a  judge.* 

Many  of  the  cases  which  engaged  the  attention  of  the  Supreme 
Court  during  the  period  of  Judge  Ellsworth's  service  were  Admiralty 
cases,  involving  not  only  nice  and  sometimes  intricate  questions  of 
jurisdiction,  but  some  of  them  also  bringing  up  for  discussion  the 
gravest  principles  of  international  and  prize  law.  It  will  be  recol- 
lected that  nearly  twenty  years  before,  Ellsworth,  as  a  member  of  the 
Committee  of  Appeals  of  the  Continental  Congress,  had  participated 
in  the  judgments  of  the  first  judicial  tribunal  ever  organized  in  Amer- 
ica with  appellate  jurisdiction  in  Admiralty  cases.  The  functions  of 
that  committee  were  now  exercised,  under  a  better  system,  and  a  more 
complete  and  thorough  organization,  by  the  Supreme  Court ;  and 
though  a  somewhat  different  class  of  cases  now  arose,  growing  out  of 
the  more  extended  commerce  of  the  United  States,  and  our  peculiar 
attitude  with  regard  to  the  belligerent  nations  of  Europe,  and  par- 
ticularly with  France,  yet  the  general  principles  applicable  to  the 
subject,  were  not  entirely  new  to  the  mind  of  Ellsworth. 

One  of  the  earliest  of  these  cases  is  that  of  La  Vengeance,^  decided 
the  next  term  after  the  Chief-Justice  took  his  seat,  and  which  has  al- 
ways since  been  regarded  as  a  leading  case  upon  the  important  ques- 
tion of  the  nature  and  extent  of  the  Admiralty  jurisdiction  conferred 
by  the  Constitution  and  judiciary  act  on  the  federal  tribunals.  In  the 
case  of  Glass  vs.  The  Sloop  Betsey,  decided  in  Chief-Justice  Jay's 
time  I  the  jurisdiction  of  the  Admiralty  in  cases  of  prize  and  captures 

*  See  a  more  full  notice  of  this  interesting  case  in  the  subsequent  sketch  of 
Chief-Justice  Marshall. 

t  United  States  vs.  La  Vengeance.    3  Dallas'  Reports,  297. 
t  Ante,  page  61. 


250  LIVES  OF  THE  CHIEF-JUSTICES. 

on  the  high  seas,  was  established.*  The  case  of  La  Vengeance,  now 
established  a  like  jurisdiction  in  cases  of  seizure  within  a  port,  and 
forfeiture  for  a  violation  of  an  act  of  Congress,  the  Court  being  unani- 
mously of  opinion  that  it  was  a  civil  cause,  and  therefore  coming  with- 
in the  Admiralty  and  maritime  jurisdiction  conferred  by  the  judiciary 
act.  But  another  question  of  novelty,  as  well  as  of  great  practical 
importance,  was  raised,  and  one  which  has  been  frequently  discussed 
since  that  time — namely,  whether  the  Admiralty  jurisdiction  can  ex- 
tend to  causes  arising  on  navigable  waters  within  the  precincts  of  a 
county.  The  La  Vengeance  had  been  libelled  in  the  District  Court  of 
New  York  for  exporting  arms  from  Sandy  Hook,  in  the  State  of 
New  Jersey,  to  a  foreign  country.  The  Attorney-General  Lee,  in  a 
very  ingenious  and  able  argument,  maintained  that  to  make  it  a  cause 
of  Admiralty,  cognizable  by  the  federal  tribunals,  it  must  arise  wholly 
upon  the  sea,  and  not  in  a  bay,  harbor,  or  water  within  the  precincts 
of  a  county  of  a  State.  But  the  Chief-Justice  and  his  associates  ruled 
the  contrary,  and  thus  established  the  precedent  which  has  never  since 
been  shaken,  that  the  Admiralty  and  maritime  jurisdiction  of  the  Fede- 
ral Courts  extends  as  far  as  the  ebb  and  flow  of  the  tide."]" 

At  the  same  term  of  the  court  the  Chief-Justice  rendered  judgment 
in  another  interesting  case  of  Admiralty,  arising  under  the  construc- 
tion of  our  treaty  with  France,  which  allowed  the  privateers  of  that 
country  to  send  into  our  ports  their  prizes  captured  of  the  enemy  on 
the  high  seas.  A  French  privateer  had  captured  a  British  merchant- 
man, the  Phoebe  Ann,  and  sent  her  into  the  port  of  Charleston.  The 
British  consul  filed  a  libel,  claiming  restitution  of  the  prize  on  the 

*  The  jurisdiction  in  cases  of  prize  is  at  least  as  ample,  says  Judge  Story,  as 
the  Admiralty  in  England.  Brown  vs.  United  States,  8  Cranch,  110. 

t  The  principle  was  fully  recognized  and  sanctioned  in  the  case  of  United  States 
vs.  The  Schooner  Betsey  (4  Cranch,  443),  by  Chief-Justice  Marshall ;  and  has  been 
carried  still  farther  since  his  time,  as  I  shall  have  occasion  to  show  in  the  subse- 
quent sketch  of  Chief-Justice  Taney. 

It  should  be  added  that  the  principle  has  been  disapproved  by  jurists  of  the 
highest  reputation.  JUDGE  WOODBURY,  in  his  dissenting  opinion  in  Waring  vs. 
Clark,  5  Howard,  448,  considers  the  decision  in  this  case  as  "  the  parent  of  mis- 
taken references  ;"  and  even  Chancellor  Kent  remarks,  "  it  may  be  doubted  whe- 
ther the  case  of  La  Vengeance,  on  which  all  the  subsequent  decisions  of  the 
Supreme  Court  have  rested,  was  sufficiently  considered."  1  Kent.  Com.  376. 


OLIVER  ELLSWORTH.  251 

ground  that  the  French  privateer  had  been  illegally  fitted  out  hi  the 
United  States.  The  evidence  was,  that  the  privateer  had  entered  the 
port  of  Charleston  for  repairs,  as  she  lawfully  might  do  under  the 
treaty  ;  but  there  had  been  no  material  augmentation  of  her  force. 
The  Court,  therefore,  refused  to  decree  restitution,  leaving  undecided, 
however,  the  important  question,  whether  if  there  had  been  a  material 
augmentation,  it  would  have  been  an  illegal  fitting  out  within  the 
meaning  of  the  law.  One  thing,  however,  was  clearly  established  by 
the  decision — namely,  that  the  Judges  of  the  Federal  Courts,  not- 
withstanding any  political  prejudices  they  might  have  been  supposed 
to  entertain  against  the  "  regicide  republic,"  were  determined  to  carry 
out  in  good  faith  the  provisions  of  existing  treaties  with  France.  The 
language  of  Judge  Ellsworth,  in  delivering  the  opinion  of  the  Court, 
is  alike  dignified  and  honorable.  "  Suggestions  of  policy  and  conve- 
nience," he  says,  "  cannot  be  considered  in  the  judicial  determination 
of  a  question  of  right.  The  treaty  with  France,  whatever  that  is, 
must  have  its  effect."  * 

Various  other  cases  of  Admiralty  and  prize  law,  involving  mainly 
questions  as  to  the  nature  and  extent  of  the  jurisdiction  of  the 
Federal  Courts,  were  brought  before  Chief-Justice  Ellsworth  both  at 
the  Circuit  and  in  the  Supreme  Court ;  but  as  these  are  of  interest  to 
the  professional  reader  alone,  who  has  an  opportunity  of  examining 
the  reports  for  himself,  and  as  I  have  already  by  the  foregoing  refer- 
ences indicated  generally  the  nature  of  the  questions  discussed  befo.e 
the  Chief-Justice  arising  on  this  branch  of  the  law,  I  dismiss  the  sub- 
ject without  further  remark.f 

*  Moodie  vs.  Ship  Phoebe  Ann.    3  Dallas'  Reports,  319. 

t  One  of  the  most  novel  and  curious  of  these  cases  is  that  of  McDonough  vs. 
Delancey,  3  Dallas,  188,  at  the  first  term  Judge  Ellsworth  came  to  the  Bench.  A 
British  merchant  ship  had  been  captured  by  a  French  squadron  on  the  high  seas, 
and  a  prize-master  and  crew  put  on  board.  Soon  after  she  was  left  by  the  prize- 
master  and  crew,  after  several  ineffectual  attempts  to  set  her  on  fire.  An  Amer- 
ican vessel  fell  in  with  her,  and  brought  her  into  the  port  of  Boston.  The  owners 
of  the  American  vessel,  the  British  consul,  and  the  French  consul,  respectively  set 
up  their  claims  to  the  captured  vessel  and  cargo.  The  District  Court  adjudged 
one-third  part  of  the  vessel  and  cargo  as  salvage  to  the  owners  and  crew  of  the 
American  ship,  and  the  residue  to  remain  in  court  for  the  British  owners.  The 
Circuit  Court  on  app<3al  reversed  the  decree  as  to  the  residue,  awarding  it  to  ilu- 


252  LIVES  OP  THE  CHIEF-JUSTICES. 

It  is  to  be  observed,  however,  that  these  jurisdictional  questions  so 
much  mooted  in  Ellsworth's  time,  were  by  no  means  confined  to  cases 
of  Admiralty  and  prize  law.  They  grew  out  of  every  branch  of  juris- 
prudence, and  were  presented  in  almost  every  form,  being  the  neces- 
sary consequence  of  that  new,  and  in  some  respects  untried,  system, 
which  was  introduced  by  the  passage  of  the  act  organizing  the  courts. 
Under  that  system  of  course  every  case  of  doubtful  jurisdiction  was  to 
be  settled  by  judicial  construction. 

Thus,  in  Wiscart  et  al.  vs.  Dauchy,*  decided  at  the  same  term  with  the 
case  of  La  Vengeance,  the  Chief-Justice  laid  down  a  principle  of  vast 
importance  to  the  profession,  so  much  so,  indeed,  as  to  lead  in  a  short 
time  to  a  change  in  the  judiciary  act.  It  was  an  action  on  the  Equity 
side  of  the  Circuit  Court ;  and  the  record,  containing  the  statement 
of  facts  required  by  the  law,  had  been  brought  by  Writ  of  Error  to 
the  Supreme  Court.  The  main  question  was,  whether  this  statement 
of  facts  was  conclusive  ; — that  is,  whether  the  Supreme  Court  had  the 
right  to  look  into  the  testimony  for  the  purpose  of  readjudicating  the 
facts,  decided  in  the  Court  below.  It  was  a  question,  as  Judge  Wil- 
son, who  delivered  a  dissenting  opinion,  very  truly  remarked,  which 
would  materially  affect  the  jurisdiction  of  all  the  Courts  in  the  United 
States  ;  and  as  it  extended  not  only  to  Equity,  but  to  Admiralty  and 
maritime  cases,  it  became  of  the  highest  importance,  inasmuch  as  it 
might  affect  the  rights  and  pretensions  of  foreign  nations,  as  well  as 
our  own  citizens. 

Judge  Wilson  thought  that  the  Supreme  Court  had  jurisdiction 
in  all  these  cases  to  review  the  fact  as  well  as  the  law.  But  the 
Chief- Justice  and  the  majority  of  the  Court  did  not  so  regard  the 
subject.  Ellsworth's  opinion,  which,  it  seems,  as  was  usually  the  case 
with  him,  was  oral,  contains  a  brief  but  clear  and  pointed  exposi- 
tion of  his  views  of  the  law,  and  must  be  admitted  to  be  strictly 
legal,  as  well  as  logical.  An  appeal,  he  remarks,  is  a  process  of  civil 
law  origin,  and  removes  a  cause  entirely,  subjecting  the  fact  as  well  as 
the  law  to  a  review  and  retrial.  But  a  writ  of  error  is  a  process  of 

French  Republic.;  and  the  Supreme  Court  affirmed  the  decision  of  the  Circuit 
Court.    The  question  of  the  jurisdiction  of  the  District  Court  was  raised  on  the 
appeal,  but  decided  unanimously  in  favor  of  the  jurisdiction. 
*  3  Dallas'  Reports,  321. 


OLIVER  ELLSWORTH.  253 

common  law  origin,  and  removes  nothing  for  re-examination  but  the 
law.  The  judiciary  act,  he  thinks,  preserves  this  obvious  distinction, 
but  it  had  provided  no  other  mode  than  a  writ  of  error  for  removing 
a  cause  to  the  Supreme  Court.  The  conclusion,  therefore,  follows, 
that  no  matter  whether  the  evidence  is  returned  or  not,  the  Court  is 
bound  by  the  statement  of  fact.  "  The  law  may,  indeed,  be  improper 
and  inconvenient,"  he  remarks  ;  "  but  it  is  of  more  importance  for  a 
judicial  determination  to  ascertain  what  the  law  is,  than  to  speculate 
upon  what  it  ought  to  be." 

At  the  following  term  of  the  Court  the  same  question  was  present- 
ed in  a  slightly  different  form.  It  was  an  Admiralty  case,*  and  the 
record  had  been  sent  up  with  all  the  evidence,  but  without  the  state- 
ment of  fact  required  by  the  law,  the  District  Judge  having  died  soon 
after  decree.  Mr.  Tilghman,  for  plaintiff  in  error,  thereupon  en- 
deavored to  distinguish  the  case  from  Wiscart  vs.  Dauchy ;  and  in- 
sisted upon  going  into  the  evidence,  notwithstanding  the  abrupt  and 
sarcastic  remark  of  Judge  Chase  from  the  bench — "  Even  if  the  Court 
were  to  permit  it,  you  would  find  little  encouragement  to  enter  into 
the  merits  ;  the  evidence  is  too  plainly  against  you  1"  But  the  Chief- 
Justice  and  his  associates  held  the  principle  to  be  the  same  as  in 
Wiscart  vs.  Dauchy,  and  adhered  to  their  former  decision,  Mr.  Justice 
Paterson  remarking,  "  If  there  is  no  statement  of  facts,  the  conse- 
quence seems  naturally  to  follow,  that  there  can  be  no  error."  f 

A  question  of  no  less  professional  interest  relative  to  the  appellate 
jurisdiction  of  the  Supreme  Court  was  decided  by  the  well-known  case 
of  Wilson  vs.  Daniel,  at  the  August  term,  1198.J  The  case  had 
been  argued  at  the  preceding  term,  in  the  absence  of  the  Chief-Justice; 
the  main  question  presented  by  the  record  being  whether  the  "matter 

*  Jennings  vs.  The  Brig  Perseverance.    3  Dallas,  336. 

t  In  the  subsequent  case  of  Blaintw.  Ship  Carter,  4  Dallas,  22,  it  was  again  held 
that  whatever  might  be  the  nature  of  the  suit,  there  was  no  mode  of  removing 
causes  to  the  Supreme  Court,  except  by  writ  of  error.  The  inconvenience  of  the 
rule  thus  established,  was  felt  to  be  so  great,  that  Congress,  by  the  act  of  March 
3rd,  1803,  provided  for  an  appeal  instead  of  a  writ  of  error,  in  equity  and  Ad 
miralty  cases,  thus  subjecting  the  evidence,  as  well  as  the  law,  to  review  in  the 
Supreme  Court. 

{  3  Dallas'  Reports,  401. 


254:  LIVES  OF  THE  CHIEF-JUSTICES. 

in  dispute  "was  of  sufficient  value  to  give  the  Court  jurisdiction.* 
The  judgment  was  in  an  action  of  debt  for  the  penalty  of  ^£60,000  ; 
but  the  real  and  operative  judgment  of  the  Circuit  Court  was  only  for 
the  sum  due,  amounting  to  $1800.  Three  of  the  Judges,  CHASE, 
PATERSON,  and  GUSHING,  concurred  in  considering  the  judgment  as  a 
judgment  at  common  law  for  the  full  penalty  ;  and  therefore  that 
the  Court  had  jurisdiction.  Judge  WILSON  dissented  ;  and  IREDELL 
declined  taking  a  part  in  the  decision.  The  argument  was  now  re- 
newed on  this  point  before  the  Chief-Justice,  by  Tilghman  on  the  one 
side,  and  by  Lee  and  Ingersoll  on  the  other.  At  the  close  of  the  dis- 
cussion Ellsworth  delivered  the  opinion  of  the  Court,  concurring  with 
the  majority  of  his  brethren,  that  the  Court  had  jurisdiction.  The 
actual  judgment,  or  verdict,  he  thought  was  not  to  be  regarded  as  the 
rule  for  ascertaining  the  matter  in  dispute.  But  that  to  determine  it, 
recurrence  must  be  had  to  the  foundation  of  the  original  controversy — 
to  the  matter  in  dispute  (in  this  case  the  penalty  of  the  bond)  when 
the  action  was  instituted."}" 

This  was  the  last  term  of  the  service  of  Mr.  JUSTICE  WILSON  J  in 

*  By  the  judiciary  act,  there  could  be  no  removal  of  a  civil  cause  from  the  Cir- 
cuit Court  to  the  Supreme  Court  unless  the  matter  in  dispute  exceeds  the  value  of 
$2000. 

t  Judge  Iredell  now  delivered  an  opinion,  agreeing  with  the  positions  taken  by 
Judge  Wilson  on  the  previous  argument.  This  dissenting  opinion  proved  to  be 
the  correct  construction  of  the  law,  as  subsequently  laid  down  by  the  Supreme 
Court  in  several  cases.  In  Gordon  vs.  Ogden,  3  Peters,  33,  Chief-Justice  Marshall 
says,  that  notwithstanding  Wilson  vs.  Daniels  was  decided  by  a  divided  court,  ho 
would  have  followed  it,  had  not  a  contrary  practice  prevailed. 

\  JAMES  WILSON  was  a  native  of  Scotland.  He  was  born  about  the  year  1742, 
and  at  the  age  of  twenty-one  emigrated  to  America,  and  settled  in  Philadelphia. 
After  a  brief  period  passed  as  a  teacher  in  the  Philadelphia  College,  a  position  for 
which  his  eminent  scholarship  and  learning  admirably  qualified  him,  he  com- 
menced the  study  of  the  law,  and  two  years  afterwards  entered  upon  the  practice 
of  his  profession  at  Reading,  Pennsylvania.  Removing  from  thence  to  Carlisle, 
and  from  Carlisle  to  Annapolis,  he  finally,  about  the  year  1773,  settled  at  Phila- 
delphia, where  he  fixed  his  residence  for  life.  Mr.  Wilson  early  engaged  with 
ardor  in  the  revolutionary  struggle  ;  was  a  member  of  Congress  during  a  part 
of  the  revolutionary  war,  and  one  of  the  signers  of  the  Declaration  of  Inde- 
pendence. He  was  also,  as  is  well  known,  a  prominent  and  influential  member  of 
the  Convention  which  framed  the  Federal  Convention,  in  which  body,  as  all  his 
speeches  and  votes  show,  he  was  numbered  among  the  most  extreme  of  the  advo- 


OLIVER  ELLSWORTH.  255 

the  Supreme  Court.  He  died  during  the  year,  at  the  house  of  his 
friend  and  colleague,  Judge  Iredell,  at  Edenton,  North  Carolina, 
while  on  a  judicial  circuit  in  that  State.  At  the  opening  of  the 
February  term  of  the  Court,  1799,  the  commission  of  his  successor, 
BUSHROD  WASHINGTON,*  was  read,  who  was  then  qualified,  and  took 

cates  of  a  strong  consolidated  government.  On  the  organization  of  the  Federal 
judiciary  he  was  appointed  to  a  seat  on  the  Bench  of  the  Supreme  Court,  which 
he  continued  to  occupy  until  his  death,  in  1798.  A  law  professorship  having 
been  established  in  the  College  of  Philadelphia,  Mr.  Wilson,  soon  after  his  appoint- 
ment as  Judge,  was  chosen  first  Professor  ;  and  two  years  after,  when  the  college 
was  united  with  the  University  of  Pennsylvania,  and  a  professorship  of  a  similar 
kind  was  established,  he  was  appointed  to  fill  it ;  thus,  like  one  of  the  most  eminent 
of  his  successors,  he  sat,  during  his  judgeship,  alternately  in  the  Professor's  chair 
and  on  the  bench. 

In  this  position  the  comprehensive  and  almost  inexhaustible  erudition  of  Judge 
Wilson  fitted  him  to  shine  with  no  ordinary  degree  of  lustre.  It  was  a  position! 
perhaps,  better  adapted  to  his  attainments  and  capacity  than  his  place  in  the 
Federal  judiciary.  And  yet  Judge  Wilson  exhibited  no  ordinary  ability  as  a  jurist 
and  lawyer.  While  in  active  practice  his  reputation,  it  is  said,  was  unsurpassed 
by  any  of  the  able  members  of  the  Philadelphia  bar,  at  the  head  of  which  he  confess- 
edly stood.  As  a  judge  he  is  also  entitled  to  high  respect,  not  more  on  account  of 
his  great  learning,  than  of  his  patient  industry,  his  uprightness  of  character,  and 
his  dignified  bearing  on  the  bench.  Some  of  his  judicial  opinions  display  a  need- 
less prolixity  of  learning,  and  bear  upon  them  evident  marks  of  the  lecture-room. 
This  may  be  said  as  well  of  his  charges  to  juries,  especially  in  criminal  cases,  as 
of  his  judgments  pronounced  from  the  bench.  Among  the  former  it  is  only  neces- 
sary to  instance  his  charge  to  the  grand  jury  which  indicted,  and  to  the  petit  jury 
which  acquitted  Henfield,  on  whose  trial  Judge  Wilson  presided. 

*  BUSLIROD  WASHINGTON  was  the  son  of  John  A.  Washington,  of  Westmoreland 
County,  Virginia,  the  next  eldest  brother  of  General  Washington.  He  received 
part  of  his  classical  education  under  a  private  tutor  at  the  house  of  Richard 
Henry  Lee,  and  his  studies  were  afterwards  continued  and  completed  at  William 
and  Mary  College,  in  Virginia.  Here  commenced  his  acquaintance  with  Marshall, 
an  acquaintance  which  afterwards  ripened  into  friendship  and  intimacy,  and  con- 
tinued unbroken  till  the  period  of  his  death.  At  the  time  of  the  invasion  of  Vir- 
ginia by  Cornwallis,  young  Washington,  just  arrived  at  the  age  of  manhood,  joined 
a  volunteer  troop  of  cavalry,  and  served  in  the  army  under  the  command  of 
Lafayette.  The  following  winter  he  came  to  Philadelphia,  and  under  the  auspices 
and  care  of  his  uncle,  General  Washington,  commenced  the  study  of  the  law  in 
the  office  of  Judge  Wilson,  whom  he  afterwards  succeeded  on  the  bench  of  the 
Supreme  Court  of  the  United  States.  His  studies  completed,  he  returned  to  Vir- 
ginia, where  he  practiced  his  profession  with  reputation  and  success.  In  1787  he 


256  LIVES  OF    THE  CHIEF^USTICES. 

his  seat.  It  may  be  added  that  Judge  Iredell  died  the  following 
year,  and  was  succeeded  by  ALFRED  MOORE,  of  North  Carolina,  and 

was  chosen  a  member  of  the  Virginia  House  of  Delegates ;  and  the  following  year 
served  in  the  Convention  which  ratified  the  Constitution  of  the  United  States. 
During  the  period  of  his  practice  at  the  bar  he  reported  the  decisions  of  the  Su- 
preme Court  of  Virginia,  a  work  in  two  volumes,  which  furnishes  abundant  indi- 
cations of  the  talents,  industry,  and  success  of  Judge  Washington,  as  an  advocate 
at  the  bar.  He  served  as  an  Associate-Justice  of  the  United  States  Supreme  Court 
with  unsullied  reputation,  and  a  constantly  increasing  fame,  from  his  appointment 
in  1798  to  the  time  of  his  death,  a  period  of  more  than  thirty  years.  He  died  on 
the  26th  of  November,  1829,  in  the  sixty-eighth  year  of  his  age  ;  his  remains  were 
deposited  at  Mount  Vernon,  in  the  same  vault  which  contained  the  ashes  of  Gen. 
Washington,  and  his  monument  is  now  to  be  seen  on  the  banks  of  the  Potomac, 
by  the  side  of  the  new  tomb,  where  rest  the  ashes  of  the  father  of  his  country. 

Judge  Washington,  it  is  well  known,  was  the  favorite  nephew  of  General  Wash- 
ington, and  the  devisee  of  Mount  Vernon ;  he  left  no  issue,  however,  to  inherit 
that  estate  after  him.  He  was  also  one  of  the  executors  of  General  Washington, 
and  came  into  possession  of  all  his  uncle's  public  and  private  papers,  which  he 
subsequently  passed  over  into  the  hands  of  his  friend,  Chief-Justice  Marshall,  for 
the  purpose  of  being  used  by  him  in  his  "  Life  of  Washington."  Judge  Story, 
who  sat  with  him  during  so  many  years  on  the  bench,  and  who  fully  appreciated 
his  worth  and  virtues,  has  left  a  brief  but  discriminating  eulogy  upon  the  character 
of  Judge  Washington,  from  which  I  select  the  following  passages  : 

"  His  mind  was  solid  rather  than  brilliant ;  sagacious  and  searching  rather  than 
quick  or  eager ;  slow,  but  not  torpid ;  steady,  but  not  unyielding ;  comprehensive, 
but  at.the  same  time  cautious ;  patient  in  inquiry,  forcible  in  conception,  clear  in  rea- 
soning. He  was,  by  original  temperament,  mild,  conciliating,  and  candid  ;  and  yet 
was  remarkable  for  an  uncompromising  firmness.  Of  him  it  may  be  truly  said  that 
the  fear  of  man  never  fell  upon  him ;  it  never  entered  into  his  thoughts,  much  less 
was  it  seen  in  his  actions.  In  him  the  love  of  justice  was  the  ruling  passion — it  was 
the  master-spring  of  all  his  conduct.  He  made  it  a  matter  of  conscience  to  discharge 
every  duty  with  scrupulous  fidelity  and  scrupulous  zeal.  It  mattered  not  whether 
the  duty  were  small  or  great,  witnessed  by  the  world  or  performed  in  private  5  every- 
where the  same  diligence,  watchfulness,  and  pervading  sense  of  justice  were  seen. 
There  was  about  him  a  tenderness  of  giving  offence,  and  yet  a  fearlessness  of  con- 
sequences in  his  official  character,  which  it  is  difficult  to  portray.  It  was  a  rare 
combination  which  added  much  to  the  dignity  of  the  bench,  and  made  justice  it- 
self, even  when  most  severe,  soften  into  the  moderation  of  mercy.  It  gained  con- 
fidence when  it  seemed  least  to  seek  it.  It  repressed  arrogance  by  overawing  or 
confounding  it.  *  *****  He  was  a 

learned  judge.    Not  in  that  every-day  learning  which  may  be  gathered  up  by  a 
hasty  reading  of  books  and  cases ;  but  that  which  is  the  result  of  long-continued 


OLIVER  ELLSWORTH.  257 

these  were  the  only  changes  made  in  the  constitution  of  the  Court 
during  the  period  of  Ellsworth's  service.  JUDGE  CHASE  came  upon 
the  bench  at  the  same  term  the  Chief-Justice  took  his  seat ;  and 
JUDGES  GUSHING  and  PATERSON  *  remained  members  of  the  Court  un- 
til after  Ellsworth's  resignation. 

Iabori6us  services,  and  comprehensive  studies.  He  read  to  learn,  not  to  quote  ; 
to  digest  and  master,  and  not  merely  to  display.  He  was  not  easily  satisfied.  If 
he  was  not  as  profound  as  some,  he  was  more  exact  than  most  meo.  But  the 
value  of  his  learning  was,  that  it  was  the  keystone  of  all  his  judgments.  He  in- 
dulged not  the  rash  desire  to  fashion  the  law  to  his  own  views,  but  to  follow  out  its 
precepts  with  a  sincere  good  faith  and  simplicity.  Hence  he  possessed  the  happy 
faculty  of  yielding  just  and  proper  weight  to  authority ;  neither  on  the  one  hand 
surrendering  himself  to  the  dictates  of  other  judges,  nor  on  the  other  hand  over- 
ruling settled  doctrines  upon  his  own  private  notions  of  policy  or  justice." 

*  WILLIAM  PATKRSON  was  one  of  the  ablest  jurists  whom  New  Jersey  has  pro- 
duced. He  came  later  into  public  life  than  some  of  his  associates,  but  he  brought 
with  him  to  the  bench  an  extensive  and  valuable  experience  at  the  bar  as  well  as 
in  various  departments  of  public  life.  He  was  first  elected  to  Congress  in  1780, 
and  afterwards  in  1786,  having  previously  served  in  the  provincial  Congress  of 
New  Jersey.  He  was  also  appointed  and  served  in  the  Convention  which  adopted 
the  Federal  Constitution.  In  this  body  Mr.  Paterson,  like  Ellsworth,  advocated  a 
strictly  federal,  in  opposition  to  a  strong  consolidated  government.  As  a  counter 
plan  to  those  proposed  by  Randolph  and  Pinckney,  he  presented  one  of  his  own, 
which  is  known  as  the  "  New  Jersey  plan,"  being  in  the  main  a  mere  revision  of 
the  articles  of  Confederation,  though  proposing  to  establish  a  supreme  Executive, 
composed  of  several  persons,  and  also  a  Federal  judiciary.  This  plan,  after  some 
discussion,  was  rejected,  it  receiving  the  support  only  of  the  delegates  from  New 
Jersey,  Connecticut,  Delaware,  and  in  part  of  Maryland.  On  the  organization  of 
the  government  Mr.  Paterson  was  appointed  one  of  the  senators  in  Congress  from 
New  Jersey.  In  that  body  he  was  placed  with  Ellsworth  upon  the  committee 
which  drafted  the  bill  to  organize  the  Federal  judiciary.  He  served  through  two 
sessions  of  this  Congress,  when,  being  elected  Governor  of  New  Jersey,  he  resign- 
ed, and  Mr.  Philemon  Dickinson  was  chosen  to  succeed  him.  On  the  death  of 
Judge  Johnson,  of  Maryland,  Mr.  Paterson  was  chosen  to  the  vacant  seat  on  the 
bench  of  the  Supreme  Court,  and  was  commissioned,  March  9th,  1793.  He 
retained  this  place  until  his  decease  in  1806,  and  was  succeeded  by  Brockholst 
Livingston,  of  New  York.  Judge  Paterson  was  unquestionably  one  of  the  ablest 
jurists  who  sat  upon  the  bench  of  the  old  Supreme  Court.  In  most  of  those  quali- 
ties which  constitute  a  successful  judge  he  was  inferior  to  none  of  tus  colleagues, 
and  perhaps  was  not  equalled  by  any,  save  his  brethren,  Iredell  and  Chase.  His 
intellect,  though  less  accurate  and  logical  than  that  of  the  former,  and  less  bold 
and  self-reliant  than  that  of  the  latter,  was  original,  comprehensive,  discriminating, 
17 


258  LIVES  OF  THE  CHIEF-JUSTICES. 

Though,  as  before  remarked,  many  of  the  cases  brought  into  the 
Supreme  Court  in  Ellsworth's  time  involved  questions  of  jurisdiction, 
or  other  questions  growing  out  of  the  peculiar  structure  of  the  federal 
system,  yet  occasionally  matters  were  brought  there  for  adjudication, 
as  they  frequently  are  now,  the  argument  of  which  turned  simply  and 
purely  upon  points  of  common  law  or  equity  jurisprudence.  The  juris- 
diction of  the  Court  in  some  cases  is  determined  by  the  character 
of  the  parties,  as  well  as  the  subject  matter  of  the  suit.  Then,  as 
now,  the  citizen  of  one  State  could  sue  the  citizen  of  another  State  in 
the  Federal  Courts,  in  any  recognized  form  of  action,  thus  laying  open 
the  whole  field  of  legal  and  equitable  jurisprudence.  In  short,  the 
Judges  of  the  Court  were  not  strangers  to  the  discussion  of  the  most 
abstruse,  and  sometimes  the  most  technical,  questions,  drawn  from  the 
musty  recesses  of  the  common  law.  Thus,  in  Brown  vs.  Barry,  at  the 
August  term,  1797,*  the  controversy  hinged  upon  the  merest  refine- 
ments of  special  pleading — presenting  a  point  too  minute  and  unsub- 
stantial for  any  one  but  the  practiced  lawyer  to  appreciate.  It  was  a 
motion  to  arrest  the  judgment  after  verdict ;  and  the  professional 
reader  will  readily  perceive  the  delicate  refinements  of  learning,  and 
the  technical  precision  of  argument  called  forth  in  the  discussion  of 
propositions  like  these  :  That  the  declaration  demands  foreign  money 
without  stating  the  value  thereof  in  the  current  money  of  the  United 
States  ;  that  it  is  in  the  delet,  as  well  as  in  the  detinet ;  that  it  does 
not  charge  that  the  bill  of  exchange  therein  mentioned  was  protested 
for  non-acceptance  ;  that  it  does  not  charge  that  the  said  bill  was 
presented  to  the  persons  on  whom  it  was  drawn  for  acceptance,  or 
and  strong.  Some  of  his  judicial  opinions  are  among  the  best  specimens  left  us  of 
the  old  Supreme  Court.  Judge  Paterson  presided  with  firmness  and  dignity,  but 
with  moderation,  in  several  of  those  exciting  criminal  trials  which  took  place 
during  Adams'  and  the  latter  part  of  Washington's  administrations.  Among  these 
were  the  trials  of  the  Western  Insurgents,  the  trial  of  Guinet,  at  Philadelphia,  for 
illegal  privateering ;  and  the  trial  of  Haswell,  in  the  Vermont  District,  for  a  sedi- 
tious libel. 

The  rigid  discipline  preserved  by  Judge  Paterson  in  Court  on  some  of  these 
trials  has  been  complained  of.  On  the  trial  of  Haswell,  it  is  said,  he  even  pre- 
vented the  pnnter  of  the  Vergennes  Gazette  from  taking  notes.  His  conduct, 
however,  was  generally  marked  by  strict  impartiality  and  a  scrupulous  regard  for 
the  rights  and  privileges  of  the  accused. 

*  3  Dallas'  Reports,  365. 


OLIVER  ELLSWORTH.  259 

that  they  were  ever  required  to  accept  it,  &c.  Judge  Ellsworth 
brought  to  the  examination  of  questions  like  these,  the  plain,  and  some- 
what homely,  but  clear,  and  strong  common  sense,  which  character- 
ized his  practical  mind.  No  one  who  reads  his  decision,  in  this  day 
of  legal  quibbles,  would  be  apt  to  call  him  a  great  lawyer — that  is  to 
say,,  one  skilled  in  the  refinements  of  legal  metaphysics,  and  in  that 
precise,  but  narrow  and  technical  attorney-logic,  with  which  the  old 
books  are  filled.  He,  indeed,  scarcely  enters  into  the  discussion  at 
all.  He  adduces  no  authority,  and  cites  no  adjudged  case  ;  and  yet 
there  is  no  lack  either  of  shrewdness  or  masculine  common  sense  in 
the  manner  in  which  he  takes  up,  and  considers,  and  over-rules,  each  ob- 
jection, seriatim.  The  opinion  which  would  have  occupied  at  least 
fifty  pages  of  a  modern  report,  is  condensed  within  two  pages  of  the 
published  case  ;  and  yet  it  is  one  of  the  longest  ever  delivered  by  the 
Chief- Justice  while  presiding  in  the  Supreme  Court. 

The  case  of  Clark  vs.  Russell,  at  the  February  term,  1799,*  present- 
ed the  subject  of  a  similar  examination.  From  the  report  of  this 
case,  and  the  number  of  authorities  cited  by  counsel,  it  would  appear 
that  the  argument  was  conducted  with  a  most  exuberant  profusion  of 
learning,  and  an  extraordinary  display  of  ability  ;  nor  could  it  well 
have  been  otherwise,  when  Ingersoll  was  the  leading  counsel  on  one 
side,  and  Dexter,  of  Massachusetts, f  headed  the  array  on  the  other, 

«  3  Dallas'  Reports,  415. 

t  SAMUEL  DEXTER  is  justly  regarded  as  one  of  the  brightest  ornaments  of 
the  Massachusetts  bar.  His  professional  career  was  one  of  great  success  and 
brilliancy,  aud  for  a  time  he  was  regarded  at  the  bar  of  the  United  States 
Supreme  Court  as  the  rival,  and,  perhaps,  the  sole  rival,  of  Pinkney.  The 
friends  and  admirers  of  each  claimed  the  superiority  over  the  other,  and  perhaps 
it  was  difficult  to  say  to  whom  the  forensic  crown  legitimately  belonged.  Judge 
Story,  in  one  of  his  letters,  contrasts  the  respective  merits  and  style  of  these  great 
advocates,  in  a  manner  certainly  not  unfavorable  to  Mr.  Dexter,  which  must  be 
esteemed  the  very  highest  compliment,  when  it  is  recollected  that  Story's  admi- 
ration for  Pinkney  was  unbounded.  Subsequently,  in  the  eulogy  delivered  on  Mr. 
Dexter's  death,  as  part  of  a  charge  to  a  grand  jury,  Story  speaks  of  him  in  terms 
of  almost  exaggerated  praise  :  "  Mr.  Dexter  was  a  man  of  such  rare  endowments, 
that  in  whatever  age  or  nation  he  had  lived,  he  would  have  been  in  the  first  rank 
of  professional  eminence.  It  is  unfortunate  that  he  has  left  no  written  record  of 
himsolf.  The  only  monument  of  his  fame  rests  in  the  frail  recollections  of  memory, 
and  can  reach  future  ages  only  through  the  indistinctness  of  tradition  or  history. 


260  LIVES  OF  THE  CHIEF-JUSTICES. 

The  opinion  of  the  Court,  pronounced  by  the  Chief- Justice,  is  even 
more  brief  and  sententious  than  in  the  former  case.  The  first  ques- 
tion discussed,  he  thinks,  had  been  already  decided  in  Brown  vs.  Barry, 
and  is  summarily  dismissed.  On  the  second  question,  namely,  whe- 

His  glowing  thoughts,  his  brilliant  periods,  and  his  profound  reasonings  have 
perished  forever."  Judge  Story  adds  that  he  rejoiced  "  to  have  lived  in  the  same 
age  with  him,  and  to  have  been  permitted  to  hear  his  eloquence,  and  to  be  in- 
structed by  his  wisdom." 

Dexter  was  born  in  the  year  1761,  and  educated  at  Harvard  University  in  1781. 
Admitted  to  the  bar,  he  rose  rapidly  into  professional  notice,  and  soon  passed  into  the 
State  Legislature,  and  from  thence  into  Congress.  He  was  a  senator  in  Congress 
when  Mr.  Adams  appointed  him  Secretary  of  War,  in  place  of  Mr.  McHenry.  On 
the  accession  of  Mr.  Jefferson  he  retired  from  the  cabinet,  and  generally  from  poli- 
tical employments ;  and  thenceforth  devoted  himself  mainly  to  the  labors  of  his 
profession,  up  to  the  time  of  his  death,  which  happened  in  May,  1816.  For 
several  years  previous  to  his  death,  Mr.  Dexter  was  constant  in  his  attend- 
ance upon  the  sessions  of  the  Supreme  Court  at  Washington,  where,  engaged 
in  many  of  the  most  important  causes,  he  held  "  his  career  in  the  foremost  rank 
of  advocates." 

The  brilliancy  of  his  forensic  arguments,  and  the  effect  of  his  eloquence,  may  be 
conceived  by  the  account  given  of  them  by  his  eulogist.  Judge  Story,  who  so 
often,  as  he  says,  listened  to  him  "  with  pride  and  pleasure "  from  the  bench. 
"  Rarely  did  he  speak  without  attracting  an  audience  composed  of  the  taste,  the 
beauty,  the  wit,  and  the  learning,  that  adorned  the  city ;  and  never  was  he  heard 
without  instruction  and  delight.  On  such  occasions  involuntary  tears  from  the 
whole  audience  have  testified  the  touching  power  of  his  eloquence  and  pathos. 
On  others  a  profound  and  breathless  silence,  expressed,  more  forcibly  than  any 
human  language,  the  riveted  attention  of  a  hundred  minds."  The  same  compe- 
tent hand,  in  the  eulogy  alluded  to,  has  sketched  the  character  of  Mr.  Dexter's 
oratory,  from  which  the  limited  space  of  a  note  enables  me  to  select  only  the  fol- 
lowing passages  :  "  His  enunciation  was  remarkably  slow,  distinct  and  musical ; 
though  the  intonations  of  his  voice  were  sometimes  too  monotonous.  His  lan- 
guage was  plain,  but  pure  and  well  selected  ;  and  though  his  mind  was  stored 
with  poetic  images,  he  rarely  indulged  himself  in  ornaments  of  any  kind.  If  a 
rhetorical  illustration,  or  striking  metaphor  sometimes  adorned  his  speeches,  they 
seemed  the  spontaneous  burst  of  his  genius,  produced  without  effort,  and  dis- 
missed without  regret.  1-, '.-*•'*  *  *  *  *  In  the 
exordiums  of  his  speeches  he  was  rarely  happy.  It  seemed  like  the  first  exercise 
of  a  mind  struggling  to  break  its  slumbers,  or  to  control  the  torrent  of  its  thoughts. 
As  he  advanced,  he  became  collected,  forcible,  and  argumentative  ;  and  his  pero- 
rations were  uniformly  grand  and  impressive.  They  were  often  felt  when  they 
could  not  be  perceived." — Story's  Miscellanies. — Eulogy  on  Dexter. 


OLIVER  ELLSWORTH.  261 

tlier  parol  testimony  might  be  admitted  to  explain  certain  letters  intro- 
duced in  evidence,  he  reverses  the  judgment,  without  examining  the 
many  learned  references  and  authorities  adduced  in  the  argument ;  the 
main  reason  assigned  for  the  reversal  being,  because  the  charge  of  the 
Judge,  that  such  testimony  might  be  admitted,  without  any  qualifica- 
tions or  restrictions,  "was  too  broad,  and  may  have  misled  the  jury." 

The  habitual  brevity  of  Judge  Ellsworth  in  the  delivery  of  his  judg- 
ments is  observable  in  all  these  decisions.  Indeed,  taken  together, 
they  constitute  but  an  imperfect  record  of  his  judicial  career,  and 
scarcely  enable  us  to  form  a  proper  estimate  of  his  capacity  as  a  judge 
in  the  discussion  of  mere  legal  questions.  He  seems  to  have  had  a 
repugnance  at  all  times  to  enter  minutely  into  the  examination  of  the 
subject  under  discussion,  or  to  state  fully  the  grounds  of  his  decision. 
Though  an  accurate  and  ready  speaker,  he  was  never  an  easy  or  fluent 
writer.  Hence,  perhaps,  his  disinclination  to  elaborate  an  argument, 
and  the  reason  why  so  few  of  his  judgments  attract  attention,  in  com- 
parison with  those  of  his  brethren  on  the  bench  ; — with  the  bold  and 
pointed  reasoning  of  Chase,  the  keen,  subtle,  logical  argumentation  of 
Iredell,  or  even  the  learned,  but  florid  and  scholastic  dissertations  of 
Wilson.  Indeed,  it  mattered  very  little  what  was  the  nature  of  the  con- 
troversy before  him,  or  how  intricate  the  question  under  discussion 
might  be  ; — the  same  studious  and  sententious  brevity  is  'apparent  in 
his  judgments,  whether  the  point  at  issue  was  a  mere  technical  ques- 
tion of  practice,  or  involved  the  most  recondite  principles  of  the  com- 
mon law. 

Thus  the  last  case  argued  at  this  winter  session  of  1799 — Sims  vs. 
Irvine,*  brought  up  for  examination  the  effect  of  the  treaty  or  com- 
pact between  Virginia  and  Pennsylvania,  and  presented  an  important 
question  in  regard  to  the  nature  of  the  land  titles  in  the  latter  State. 
T,he  subject  was  discussed  at  great  length,  and  with  a  profusion  of 
learning,  by  some  of  the  ablest  counsel  at  the  bar,  as  the  reported 
analysis  of  the  argument  clearly  shows.  But  the  opinion  of  the  Chief- 
Justice,  affirming  the  judgment  of  the  Circuit  Court  and  the  validity 
of  the  Pennsylvania  land  title,  is  compressed  within  a  single  page  of 
the  report.  He  decides  that  the  survey  of  the  land  and  payment, 
though  without  an  actual  patent  issued,  is  a  legal  title,  sufficient  to 
*  3  Dallas'  Reports,  425. 


262  LIVES  OF  THE  CHIEF-JUSTICES. 

maintain  ejectment  under  the  laws  of  property  and  tenures  of  Penn- 
sylvania ;  and  this  law,  notwithstanding  the  new  distribution  of  judi- 
cial powers  in  the  federal  tribunals,  must  be  regarded  by  them  as  a 
settled  RULE  OF  DECISION,  in  regard  to  estates  in  Pennsylvania.  Judge 
Iredell  concurred  in  the  judgment,  but  for  different  reasons,  which  he 
assigns  at  length  in  one  of  his  best  and  most  carefully  written  opinions. 
But  from  the  habitual  brevity  of  the  Chief-Justice,  we  do  not  clearly 
see  wherein  he  differs  from  Judge  Iredell,  nor  in  what  manner  by 
another  mode  of  reasoning,  he  arrives  at  precisely  the  same  conclu- 


Through  the  whole  period  of  his  official  service,  Judge  Ellsworth 
regularly  rode  the  circuits,  as  had  previously  been  done  by  his  prede- 
cessor Jay.  The  law  requiring  a  Circuit  Court  to  be  held  by  two 
Justices  of  the  Supreme  Court,  with  the  District  Judge,  had  been  mo- 
dified so  as  to  require  the  attendance  of  but  one  of  the  Supreme  Court 
Justices  ;  but  the  old  practice  of  the  allotment  of  circuits  among 
the  Judges,  so  that  the  same  Judge,  except  by  his  own  consent, 
should  not  be  assigned  to  the  same  circuit  until  after  it  had  been  held 
by  each  of  his  associates  successively,  was  still  in  force.*  This,  of 
course,  increased  the  fatigue  and  labor  of  circuit  duty,  and,  with  the 
two  regular  sessions  of  the  Court  in  bane  at  Philadelphia,  rendered 
the  office  of  Justice  of  the  Supreme  Court,  in  those  days  when  steam- 
boats and  railroads  were  unknown,  no  sinecure. 

As  a  Judge  at  nisi  prius,  Ellsworth  has  been  spoken  of  in  terms  of 
the  highest  praise.  Perhaps  the  temper  of  his  mind,  his  habits  of 
thought,  and  his  past  experience,  better  fitted  him  for  the  perform- 
ance of  this  branch  of  his  official  duty  than  any  other.  He  certainly 
brought  to  its  discharge  qualities  of  a  very  high  order.  A  calm,  dis- 
criminating, and  well-balanced,  if  not  original  intellect ;  a  solid,  prac- 
tical good  sense,  equally  beyond  the  reach  of  influence  from  passion, 
imagination,  or  prejudice  ;  powers  of  accurate  and  unerring,  though 
not  rapid,  analysis  ;  courtesy  of  manner,  simplicity  and  dignity  of  de- 
portment, an  industry  that  knew  no  fatigue,  and  never  courted  repose, 
and  an  impartiality  of  judgment  and  uprightness  of  character,  that 
none  ever  ventured  to  assail.  His  charges,  particularly  those  delivered 
to  grand  juries,  have  been  mentioned  as  deeply  impressive,  both  in 
*  Act  of  April  13th,  1792. 


OLIVER  ELLSWORTH.  263 

matter  and  manner — breathing  a  lofty  moral  tone,  and  never  failing 
to  inculcate  those  elevated  principles  of  legal  ethics  of  which  the  judi- 
cial bench  is  so  fitly  the  expositor. 

In  the  discharge  of  his  circuit  duties,  Judge  Ellsworth  did  not  en- 
tirely escape  a  participation  in  those  criminal  trials  so  celebrated  at 
that  period,  some  of  which  left  their  "  fatal  dowry"  to  his  less  fortu- 
nate brother,  Judge  Chase.*  But,  unlike  that  gifted,  though  indiscreet 

*  SAMUEL  CHASE,  the  only  son  of  a  clergyman,  was  born  in  Somerset 
County,  Maryland,  on  the  17th  April,  1741.  At  the  age  of  eighteen  he  com- 
menced the  study  of  the  law,  in  Annapolis,  and  two  or  three  years  afterwards 
established  himself  there  in  the  practice  of  his  profession.  For  several  years 
prior  to  the  Revolution  he  was  a  member  of  the  Colonial  Legislature,  where  he 
distinguished  himself  by  his  ardent  republicanism,  his  vehement  temper,  and  his 
"  uncourtly  bearing  to  the  court  party."  In  the  Continental  Congress  he  per- 
formed good  service,  and  by  his  resolute  and  persevering  energy  contributed  in 
no  small  degree  to  bring  about  the  Declaration  of  Independence.  Though  origi- 
nally an  opponent  of  the  Federal  Constitution,  he  was  appointed  by  President 
Washington,  in  1796,  one  of  the  Associate-Justices  of  the  Supreme  Court  of  the 
United  States,  an  office  which  he  continued  to  hold,  notwithstanding  the  unhappy 
interruption  of  his  official  duties  by  his  impeachment  before  the  Senate,  until  the 
close  of  his  life,  in  1811. 

The  extraordinary  capacity  of  Judge  Chase  has  never  been  questioned  or  de- 
nied. It  was  such  as  almost  to  justify  the  remark  said  to  have  been  made  of  him 
by  a  distinguished  member  of  the  Philadelphia  bar — neither  a  personal  nor  a  poli- 
tical friend — that  he  was  the  greatest  judge  he  had  ever  seen.  But  the  strength 
of  these  intellectual  endowments  was  in  a  measure  impaired  by  an  unhappy  mental 
constitution,  and  an  impetuous,  arbitrary  temper,  which  fitted  him  rather  for  a 
partisan  than  a  judge,  and  kept  him  at  constant  variance  with  the  bar,  and  in- 
deed all  with  whom  he  came  professionally  in  contact ;  causing  him,  as  it  is  ex- 
pressed in  his  biography,  "  to  be  running  perpetually  with  a  mob  at  his  heels." 

The  energy  of  his  character  and  the  fearlessness  of  his  temper,  were  displayed  in  a 
very  striking  manner  while  holding  the  double  office  of  Chief-Justice  of  the  Gene- 
ral Court,  and  Judge  of  the  Criminal  Court  in  Baltimore.  Two  persons  of  respect- 
ability had  been  brought  before  him  charged  with  participating  in  a  riot,  on 
whose  behalf  the  most  overwhelming  and  violent  popular  sympathy  was  mani- 
fested. Refusing  to  give  bail,  they  were  ordered  to  prison.  The  sheriff,  pointing 
to  the  mob  in  despair,  declined  to  undertake  the  task.  "Summon  the  posse 
comitatus!"  exclaimed  the  Judge  ;  but  the  sheriff  replied  that  no  one  would  obey 
the  call.  "  Summon  me  then,"  replied  the  Judge,  with  determined  emphasis ;  "  I 
will  be  the  posse  comitatus,  and  I  will  take  the  prisoners  to  jail !"  After  eome 
delay  the  prisoners  yielded,  and  gave  the  required  bail.  Four  months  afterwards, 
when  the  grand  jury  refused  to  find  a  bill  against  them,  he  publicly  censured  the 


264:  LIVES  OF    THE  CHIEF-JUSTICES. 

Judge,  he  passed  through  the  ordeal  in  safety,  and  came  out  of  the 
furnace  without  the  smell  of  fire  upon  his  garments.  I  do  not  mean 
to  say  that  his  opinions  escaped  criticism,  and  severe,  perhaps  just, 

sheriff  for  returning  so  bad  a  jury.  Fired  with  indignation,  they  immediately 
found  a  presentment  against  the  Judge  for  the  offence  of  holding  two  incom- 
patible offices  at  the  same  time.  To  this  Chase  took  no  exceptions,  if  they 
really  believed  it  to  be  an  offence,  though  he  could  not  help  observing,  he  said* 
that  it  seemed  to  flow  from  a  supposed  insult  to  themselves.  "You  will  con- 
tinue, gentlemen,"  he  remarked  with  biting  sarcasm, "  to  do  your  duty,  and  I 
shall  persevere  in  mine ;  and  rest  assured  that  no  mistaken  opinion  of  yours, 
or  resentment  against  me,  will  prevent  my  having  a  due  respect  for  you — 
as  a  jury."  But  it  was  in  his  administration  of  the  criminal  law  on  the  bench  of 
the  Federal  Couf  ts  that  Judge  Chase  acquired  the  widest  and  most  unenviable  noto- 
riety ;  not  that  it  was  characterised  by  ignorance,  much  less  by  actual  injustice, 
for  his  keen  and  powerful  intellect  lifted  him  far  above  the  one,  and  his  bold  inde- 
pendence and  natural  magnanimity  of  temper  preserved  him  from  the  other.  But 
Chase  brought  to  the  bench  the  feelings  of  a  partisan  ;  and,  as  a  Judge,  he  en- 
forced the  criminal  law,  and  those  penal  statutes,  which  even  then,  were  widely 
unpopular,  with  the  unrelenting  sternness  and  severity  of  the  inquisitor.  Counsel 
as  well  as  prisoner  alike  experienced  his  harshness  of  temper,  and  were  forced  to 
bear  up  under  his  abrupt,  arbitrary,  dictatorial  manner.  The  "  conduct  directed 
by  the  Court "  on  the  trial  of  Fries,  drove  Messrs.  Dallas  and  Lewis  out  of  the  case. 
"  You  may  think  to  embarrass  the  Court,"  he  remarked  to  Mr.  Dallas,  "  but  you 
shall  find  yourself  mistaken."  And  when  the  counsel  had  left  the  bar,  turning 
to  the  prisoner,  he  observed  that,  "  by  the  blessing  of  God,  the  Court  would  do 
him  as  much  justice  as  the  counsel  who  had  been  assigned  him."  On  the  trial  of 
Cooper,  at  Philadelphia,  for  seditious  libel,  he  exhibited  a  comparative  moderation, 
for  the  reason,  perhaps,  that  he  found  very  little  difficulty  in  obtaining  a  convic- 
tion ;  but  all  the  daring  of  his  temper  and  the  dictatorial  energy  of  his  mind  were 
called  forth  in  the  famous  trial  of  Callender,  which  finally  brought  down  on  his 
devoted  head  the  long  pent  up  vials  of  the  public  indignation.  Judge  Chase 
started  for  Richmond  on  this  trial  with  the  declaration,  as  was  stated  at  the  time, 
that  he  would  "  teach  the  lawyers  of  Virginia  the  difference  between  the  liberty 
and  licentiousness  of  the  press  ;"  and  so  resolutely  was  his  mind  bent  on  obtain- 
ing a  conviction,  that,  it  is  also  said  on  the  highest  authority,  he  instructed  the 
Marshal  "  not  to  put  any  of  these  creatures  called  democrats  on  the  jury."  During 
the  whole  trial  the  contest  seems  to  have  been  mainly  between  the  Court  and  the 
prisoner's  counsel  5  and  though  the  latter  were  among  the  most  eminent  lawyers  at 
the  Virginia  bar— Nicholas,  Hay,  and  Wirl^-it  must  be  confessed  that  the  in- 
domitable will,  and  arbitrary  and  overbearing  temper  of  the  Judge  got  the  better 
of  them.  The  excitement  of  the  contest  appeared  to  elevate  his  spirits,  to  aug- 
ment his  boldness,  and  even  to  sharpen  his  intellectual  vigor.  As  Dryden  described 
Shaftesbury,  he  was  not  only 


OLIVER  ELLSWORTH.  265 

animadversion  ;  but  that  while  the  judgment  of  the  Court  was  depre- 
cated, the  person  and  character  of  the  Judge  were  respected ;  and 

"Sagacious,  bold,  and  turbulent  of  wit ;" 
but  he  was  also,  as  was  fully  exhibited  ou  this  trial — 

,  "  The  daring  pilot  in  extremity, 

Pleased  with  the  danger  when  the  waves  ran  high." 

The  eminent  counsel  who  defended  the  prisoner,  foiled  and  brow-beaten,  were 
filled  with  a  just  indignation.  A  determination  to  procure  his  impeachment,  is 
said  to  have  been  avowed  during  the  trial,  and  for  a  long  time  counsel  refused  to 
appear  before  him.  At  length,  in  1804,  Mr.  Randolph  moved  the  long  expected 
charges  against  him  in  the  House  of  Representatives,  and  the  famous  impeach- 
ment was  subsequently  tried  by  the  Senate.  His  conduct  on  the  trial  of  Fries 
formed  the  first  charge,  and  on  Calender's  trial  the  next  five  charges  in  the  indict- 
ment ;  and  though  a  majority  voted  him  guilty  on  one  or  two  of  these  charges, 
such  as  for  "  rude  and  contemptuous  conduct  during  the  trial,"  &c.,  he  was  saved 
from  conviction  by  the  failure  to  obtain  a  two-third  vote. 

This  unfortunate  affair,  as  might  well  be  imagined,  subdued  the  impetuosity  of 
his  temper,  and  cast  a  shadow  over  the  remaining  years  of  his  life.  Thenceforth 
he  discharged  all  the  duties  of  his  station  with  his  usual  ability,  indeed,  but  with 
a  calm  and  formal  moderation,  and  a  haughty  decorum,  which,  though  it  might 
provoke  criticism,  could  not  bring  down  censure  on  his  head.  He  had  always 
been  esteemed,  in  everything  pertaining  to  the  civil  jurisdiction  of  the  Courts,  a 
wise,  able,  and  impartial  Judge,  even  during  the  most  stormy  portion  of  hia 
career.  His  keen  and  bold  intellect,  his  profound  knowledge  of  legal  principles, 
his  comprehensive  and  accurate  judgment,  and  his  integrity  and  perfect  inde- 
pendence of  character,  fitted  him  admirably  for  the  discharge  of  these  duties. 
With  all  the  daring  of  Shaftesbury  as  a  partisan— though  without  his  other 
blemishes  of  character— he  might  be  said  to  rival  that  unscrupulous,  but  capable 
minister,  in  almost  his  only  redeeming  trait— his  wisdom  and  capacity  as  a 
Judge.  The  industry  and  application  of  Judge  Chase  were  also  great ;  and 
though,  hurried  away  by  the  ardor  of  his  temper  in  a  season  of  excitement,  he 
might  come  down  from  the  Bench  of  the  Supreme  Court,  even  though  his  absence 
left  it  without  a  quorum,  and  canvass  his  State  on  the  eve  of  a  presidential  elec- 
tion, in  behalf  of  hia  friend,  President  Adama,  "  with  such  Mat,"  says  Mr.  Whar- 
ton,  "  that  at  his  final  harangue  at  Elk  Ridge,  nearly  all  Maryland  was  congre- 
gated to  listen  to  a  stump  speech  '  two  hours  long ;'  "  yet  he  rarely  failed  at  all 
other  times  in  the  punctilious  and  thorough  discharge  of  every  official  engage- 
ment In  his  private  intercourse,  though  rough,  he  was  not  uncourteous  in  man- 
ner, and  indeed  seems  to  have  favorably  impressed  all  who  approached  him. 
Judge  Story  saw  him  late  in  life,  and  speaks  with  great  respect  both  of  his  abilities 
and  his  unaffected  courtesy.  « I  suspect  he  is  the  American  Thurlow,"  saya 
Story,  in  one  of  his  letters,  and  adds,  "  I  like  him  hugely." 


266  LIVES  OF  THE  CHIEF-JUSTICES. 

while  his  supposed  errors  were  condemned,  his  integrity  of  motive 
was  neither  aspersed  nor  suspected. 

I  have  briefly  alluded  in  the  sketch  of  Chief-Justice  Jay  to  one  of 
the  earliest  of  those  criminal  trials,  which,  from  that  time  to  the  repeal 
of  the  sedition  law,  kept  the  country  in  a  constant  fever  of  excitement 
— namely,  the  case  of  Henfield.  That  trial  laid  down  with  circum- 
stantial precision  the  doctrine  of  a  common-law  jurisdiction  in  the 
Federal  Courts  in  criminal  cases — a  doctrine  then,  and  subsequently, 
odious  to  the  republican  party,  and  denounced  by  some  of  their  ablest 
men  in  unmeasured  terms.*  It  is,  perhaps,  unnecessary  to  say  that 
Ellsworth  was  a  believer  in  this  doctrine,  which  no  Judge  of  the  Fed- 
eral Courts  at  that  time,  save  Samuel  Chase,  had  been  bold  enough 
to  deny.  The  Chief- Justice,  however,  was  but  a  follower  over  the 
beaten  track  which  his  predecessors  had  travelled,  in  holding  the  doc- 
trine of  a  common-law  jurisdiction  ;  and  therefore,  in  a  measure,  might 
escape  the  censure  with  which  they  were  visited.  But  another  ques- 
tion now  arose,  involving  a  proposition  of  almost  equal  importance, 
and  certainly  of  no  less  interest  in  its  political  aspects,  in  the  establish- 

The  fact  has  also  been  mentioned  as  strikingly  characteristic  of  Judge  Chase, 
and  illustrative  of  his  bold  and  independent  habits  of  thought,  that  he  did  not  hesi- 
tate to  differ  from  his  brethren  and  his  own  party-associates  on  the  most  important 
questions,  even  though  they  might  involve  political  considerations.  While  claim- 
ing to  exercise  as  a  Judge  in  criminal  cases  the  most  arbitrary  powers,  he  was 
singularly  averse  to  assuming  any  doubtful  civil  jurisdiction ;  thus  he  was  the 
first  to  deny  that  the  Court  possessed  a  common-law  jurisdiction,  and  the  last  to 
admit  that  it  could  pronounce  an  act  of  Congress  void,  as  being  repugnant  to  the 
Constitution. 

*  Says  Jefferson,  in  a  letter  to  Edmund  Randolph,  August  18th,  1799.  «  Of  all 
the  doctrines  which  have  ever  been  broached  by  the  Federal  Government,  the 
novel  one  of  the  common  law  being  in  force  and  cognizable  as  an  existing  law  in 
these  Courts,  is  to  me  the  most  formidable.  All  their  other  assumptions  of  un- 
given  powers  have  been  in  the  detail.  The  bank  law,  the  treaty  doctrine,  the 
sedition  act,  alien  act,  the  undertaking  to  change  the  State  laws  of  evidence  in  the 
State  Courts  by  certain  parts  of  the  stamp  act,  &c.,  have  been  solitary,  uncon- 
sequential,  timid  things,  in  comparison  with  the  audacious,  barefaced,  and  sweep- 
ing pretension  to  a  system  of  law  for  the  United  States,  without  the  adoption  of 
their  legislature,  and  so  infinitely  beyond  their  power  to  adopt."  *  *  * 
"  Great  Heavens !"  he  exclaims,  in  the  conclusion  of  this  letter,  "  Who  could  have 
conceived  in  1789  that,  within  ten  years,  we  should  have  to  combat  such  wind- 
mills !"— 3  Jefferson's  Writings,  425,  428. 


OLIVER  ELLSWORTH.  267 

ment  of  which  Ellsworth  was  to  be  the  pioneer,  and  the  full  responsi- 
bility of  which  he  was  to  take  on  his  own-  shoulders.  This  was  the 
question,  so  often  and  so  ably  discussed  since  that  time,  whether  the 
right  of  expatriation  was  to  be  recognized  in  the  Federal  Courts  as  a 
part  of  the  municipal  law  of  the  country.  The  question  came  directly 
before  the  Chief-Justice  in  the  trial  of  the  noted  privateer's  man,  Isaac 
Williams,  for  enlisting  on  board  a  French  vessel  in  alleged  violation 
of  a  clause  in  the  treaty  with  Great  Britain.  The  trial  is  sufficiently 
interesting  to  deserve  a  brief  notice.* 

Williams  was  indicted  and  tried  at  the  Circuit  Court  for  the 
Connecticut  District,  at  Hartford,  in  September,  1199.  The  crime 
alleged  against  him  was,  that,  being  a  citizen  of  the  United  States, 
he  had  accepted  a  commission  as  lieutenant  on  a  vessel  belonging  to 
the  French  Republic,  then  at  war  with  England,  contrary  to  the 
treaty  of  amity  and  commerce  between  Great  Britain  and  the 
United  States.  Williams  admitted  the  act  alleged  against  him,  but 
claimed  that  he  was  a  French  citizen,  offering  to  show  French  natural- 
ization papers,  and  continued  residence  in  France  since  1792,  except  a 
period  of  not  more  than  six  months  in  1796,  when  he  returned  to 
America  on  a  visit  to  his  relatives  and  friends.  The  case  in  its  general 
features  was  similar  to  that  of  Henfield's,  with  the  exception  that 
Williams  relied  mainly  on  his  character  of  a  French  citizen';  and  the 
question  therefore  turned  entirely  upon  the  point  whether  the  com- 
mon-law maxim,  "  no  one  can  throw  off  his  country,  or  abjure  his  alle- 
giance," f  was  the  law  of  the  United  States. 

Judge  Law,  the  District  Judge  of  Connecticut,  sat  with  the  Chief- 
Justice  on  this  trial,  and  was  of  the  opinion  that  the  evidence  offered 
by  the  prisoner  should  be  left  to  the  consideration  of  the  jury.  But 
the  Chief-Justice  was  decidedly  of  a  contrary  opinion.  He  boldly, 

*  The  ruling  of  Judge  Ellsworth  upon  this  trial  was  very  severely  criticised, 
and  particularly  in  two  letters  published  in  the  "  Examiner,"  under  the  title  of 
"  Aristogiton,"  said  to  have  been  written  by  Mr.  Nicholas,  of  Virginia,  in  which 
the  popular  American  doctrine  is  very  ably  and  successfully  maintained,  and 
Which  "  exposed  completely,"  says  the  author  of  the  suppressed  history  of  Mr. 
Adams'  Administration,  "  the  fallacy  of  the  arguments  adduced  by  the  Chief- 
Justice." 

f  Nemo  potest  exuere  patriam,  nee  debitum  ligcantite  ejurare. 


268  LIVES   OF   THE   CHIEF-JUSTICES. 

and  without  the  slightest  hesitation,  met  the  question  which  Chief- 
Justice  Rutledge  and  his  associates  in  Talbot  vs.  Jansen  *  had  avoided 
— and  which  for  years  after  was  cautiously  avoided  by  his  successors 
on  the  bench — and  held  that  the  English  common-law  doctrine  as  to 
perpetual  allegiance,  was  a  part  of  the  municipal  law  of  the  land,  and 
applicable  to  the  case  at  bar.  It  is  curious  to  observe,  however,  that 
while  the  English  rule  is  to  be  traced  to  the  feudal  system,  and  is 
based  exclusively  on  the  feudal  relation  of  lord  and  vassal,  the  Amer- 
ican Judge,  applying  it  in  an  American  Court,  deduces  it  solely  from 
the  comparatively  modern  doctrine  of  the  social  compact  as  the  basis 
of  government.  All  the  members  of  a  civil  community,  he  remarks, 
in  his  address  to  the  jury,  are  bound  to  each  other  by  compact.  The 
compact  is,  that  the  community  will  protect  its  members,  and  they  on 
the  other  hand  will  at  all  times  be  obedient  to  the  laws  of  the  commu- 
nity, and  faithful  in  its  defence.  It  necessarily  follows  that  the  mem- 
bers cannot  dissolve  this  compact,  without  the  consent  or  default  of 
the  community,  &c. 

It  had  been  argued  with  great  pertinency  and  force  by  the  pris- 
oner's counsel,  that  the  policy  of  the  government  and  its  practice  in 
permitting  the  naturalization  of  foreigners,f  were  sufficient  evidence 
of  consent.  Judge  Ellsworth  meets  and  answers  this  argument  with 
the  following  propositions,  the  soundness  of  which  I  shall  leave  to  the 
advocates  of  the  doctrine  of  perpetual  allegiance  to  defend. 

"  Consent  has  been  argued  from  the  acts  of  our  government  permitting 
the  naturalization  of  foreigners.  When  a  foreigner  presents  himself  here, 
and  proves  himself  to  be  of  good  moral  character,  well  affected  to  the 
Constitution  and  Government  of  the  United  States,  and  a  friend  to 
the  good  order  and  happiness  of  civil  society  ;  if  he  has  resided  here 
the  time  prescribed  by  law,  we  grant  him  the  privilege  of  a  citizen. 
We  do  not  inquire  what  his  relation  is  to  his  own  country  ;  we  have 
not  the  means  of  knowing,  and  the  inquiry  would  be  indelicate  ;  we 

*  Ante,  pages  184,  185. 

t  The  alien  is  required  on  his  naturalization  to  abjure  his  former  allegiance. 
Chancellor  Kent  notices  this  glaring  inconsistency  between  the  doctrines  sought 
to  be  established  in  the  Federal  Courts,  and  the  policy  of  the  government  in  its 
naturalization  laws,  which  practically  asserts  the  right  of  all  mankind  to  emigrate 
from  one  country  to  another,  and  renounce  their  allegiance  at  will.— Sec  2  Kent's 
Com.  p.  49,  note. 


OLIVER  ELLSWORTH.  269 

leave  him  to  judge  of  that.  If  he  embarrasses  himself  by  contracting  con- 
ttadictory  obligations,  the  fault  and  the  folly  are  his  own.  But  this  im- 
plies no  consent  of  the  government,  that  our  own  citizens  should  expa- 
triate themselves.  Therefore  it  is  my  opinion  that  these  facts  which  the 
prisoner  offers  to  prove  in  his  defence,  are  totally  irrelevant  ;  they 
can  have  no  operation  in  law  ;  and  the  jury  ought  not  to  be  embar- 
rassed or  troubled  with  them  ;  but  by  the  constitution  of  the  Court  the 
evidence  must  go  to  the  jury." 

Of  course  the  jury,  under  this  charge  of  the  presiding  judge,  at 
once  found  a  verdict  of  guilty.  Williams  was  sentenced  to  four 
months'  imprisonment,  and  to  pay  a  fine  of  one  thousand  dollars. 
Pleading  guilty  to  another  indictment  for  a  similar  offence,  a  like  sen- 
tence was  passed  upon  him  by  the  Court.  "  So  much  for  naturaliza- 
tion acts,"  says  a  prominent  Federalist  of  the  day.  "  The  jacobins  are 
impudent  and  cross  ;  they  think  they  gain  ground  ;  they  are  mis- 
taken." * 

It  is  scarcely  necessary  here  to  remark,  that  the  rule  so  decisively 
laid  down  by  Ellsworth  in  Williams'  case,  was  widely  at  variance  with 
the  popular  doctrines  of  the  day,  and  is  in  direct  conflict  with  the 
whole  policy  and  practice  of  the  government  since  that  time.  It,  in- 
deed, goes  far  to  justify  the  claims  set  up  by  Great  Britain  in  the  war 

*  Letter  of  Mr.  Chauncey  Goodrich  to  Wolcott,  Sept.  28th,  1799.  The  repub- 
licans, on  the  other  hand,  were  indignant  at  the  sentence. 

"Great  God!"  exclaims  Aristogiton, " What  must  have  been  the  feelings  of 
Judge  Ellsworth  when  he  was  depriving  Williams  of  this  natural  right.  But  I 
will  suppress  the  emotions  which  beat  in  my  bosom  upon  the  recollection  of  this 
hideous  sentence,  and  I  will  proceed  to  examine  coolly  and  dispassionately  the  ques- 
tion. If  this  alien  had  not  a  right  to  throw  off  his  allegiance  to  his  own  country,  then 
Congress,  by  making  the  law,  have  deprived  foreign  governments  of  one  of  their 
most  essential  rights,  and  have  moreover  been  guilty  of  a  crime  which  approaches 
very  nearly  to  man-stealing." 

In  the  further  examination  of  the  subject,  the  writer  proceeds  to  put  the  Chief- 
Justice  in  a  dilemma  from  which  it  is  not  easy  to  see  how  he  can  be  extricated. 
"  Such  is  the  dilemma,"  he  remarks,  "  in  which  he  has  placed  himself.  He  must 
either  admit  that  according  to  the  principles  of  our  naturalization  laws  our  citi- 
zens have  a  right  to  expatriate  themselves,  or  that  the  legislature  of  the  United 
States,  that  body  whose  laws  (when  they  are  constituted)  he  is  bound  to  expound 
and  enforce,  have  been  guilty  of  the  most  horrible  of  all  crimes,  and  have  git 
sufficient  cause  of  war  to  all  the  nations  of  the  world." 


270  LIVES  OF  THE  CHIEF-JUSTICES. 

of  1812,  and  if  recognized  by  the  government  as  a  rule  of  inter- 
national law,  would  strike  at  the  foundation  of  the  right  asserted  and 
exercised  by  the  United  States  of  protecting  adopted  citizens  even 
against  the  wrongful  acts  of  the  government  claiming  their  allegiance. 
This  right  has  been  ably  and  triumphantly  vindicated  since  that  time,* 
and  may  be  regarded,  so  far  as  the  intercourse  of  this  country  with 
foreign  nations  is  concerned,  as  a  settled  principle  of  international  law. 
It  must  be  confessed,  however,  that  the  Courts  have  not  fully  sanc- 
tioned the  doctrine  ;  but  that  on  the  contrary,  though  never  applying 
it  in  its  full  extent,  as  it  was  laid  down  in  Williams'  case,  they  have 
in  one  or  two  instances  been  inclined  to  consider  the  common-law 
principle  of  perpetual  allegiance  as  a  part  of  the  municipal  law  of  the 
land.  Such  at  least  was  the  case  in  Shanks  vs.  Dupont,f  where  Judge 

*  See  the  masterly  dispatches  of  Mr.  Buchanan,  Secretary  of  State  under  Mr. 
Folk's  administration,  in  the  case  of  Bergen  ;  and  that  of  the  present  Secretary 
of  State,  Mr.  Marcy,  in  the  Kozsta  case. 

t  3  Peters'  Reports,  242.  It  is  worthy  of  remark  that  up  to  this  time,  though 
the  question  had  been  repeatedly  argued  by  the  ablest  counsel  at  the  bar,  yet  the 
Supreme  Court  of  the  United  States  had  constantly  avoided  its  decision.  The 
case  of  Talbot  vs.  Jansen  has  already  been  mentioned.  In  the  case  of  Murray 
vs.  Charming  Betsey,  in  1804,  2  Cranch,  64,  it  was  discussed  at  great  length 
and  with  commanding  ability ;  but  Chief-Justice  Marshall,  who  delivered  the 
opinion  of  the  Court,  avoided  the  decision  with  more  than  his  usual  caution. 
"Whether  a  person  born  within  the  United  States,"  he  says,  "or  becoming  a 
citizen  according  to  the  established  laws  of  the  country,  can  divest  himself  abso- 
lutely of  that  character  otherwise  than  in  such  manner  as  may  be  prescribed  by 
law,  is  a  question  whioh  it  is  not  necessary  now  to  decide."  And  four  years  later, 
in  the  case  of  Mcllvaine  vs.  Coxe's  Lessees,  4  Cranch,  209— though  the  whole 
question  was  again  discussed  at  the  bar  with  an  accuracy  of  learning  worthy  the 
magnitude  and  importance  of  the  subject,  Judge  Gushing,  who  pronounced  the 
decision  of  the  Court,  declined  expressing  an  opinion  "  upon  the  right  of  expatria- 
tion, as  founded  on  the  common  law."  In  the  celebrated  case  of  the  Santissima 
Trinidad,  Judge  Story  in  like  manner  declined  examining  the  doctrine,  though 
it  had  been  much  discussed  at  the  bar,  remarking  that  it  would  be  "  sufficient  to 
ascertain  its  precise  nature  and  limits,  when  it  shall  become  a  leading  point  of  a 
judgment  of  the  Court."  A  few  years  later,  however,  in  the  cases  of  Inglis  vs. 
Sailors'  Snug  Harbor,  3  Peters,  156 ;  and  Shanks  vs.  Dupont,  mentioned  in  the 
text,  he  recognizes  the  general  doctrine  to  be,  that  allegiance  by  birth  cannot  be 
put  off  except  by  consent  of  the  government.  But  it  is  to  be  remarked  that  even 
in  the  latter  case  the  learned  Judge,  though  stating  "  the  general  doctrine  "  of 
the  common  law,  does  not  undertake  "  to  ascertain  its  precise  nature  and  limits." 


OLIVER  ELLSWORTH.  271 

Story  recognizes  generally  the  existence  of  the  principle,  and  Judge 
Johnson,  in  a  dissenting  opinion,  sustains  the  same  proposition  in  a 
very  plausible  and  ingenious  argument.  If  this  is  to  be  regarded  as  a 
judicial  decision  upon  the  precise  question  under  consideration — which, 
however,  is  by  no  means  clear— then  the  United  States  presents  the 
singular  spectacle  of  a  nation  administering  in  its  Courts  a  rule  of 
municipal  law,  which  its  government  practically  ignores  in  its  inter- 
course with  foreign  nations>  as  a  rule  of  public  and  international  law. 
A  position  so  inconsistent  it  will  be  difficult  to  maintain  ;  and  the 
question,  if  ever  presented  directly  to  the  Court,  must  doubtless  be  de- 
cided in  accordance  with  the  more  liberal  doctrine,  sanctioned  by  the 
practice  of  the  government,  which  recognizes  the  right  to  change  alle- 
giance as  a  natural  right,  inseparably  connected  with  a  lona-fide  and 
permanent  change  of  domicil.  Indeed,  but  for  the  opinions  of  the 
learned  judges,  in  the  case  last-mentioned,  it  might  even  now  be  con- 
fidently asserted  that  the  doctrine  of  perpetual  allegiance  as  laid 
down  by  Ellsworth,  had  passed  away  even  as  a  rule  of  -municipal  law, 
with  the  doctrine  of  a  common  law  jurisdiction,  as  expounded  by  his 
predecessor.  Applied  as  it  was  in  the  case  of  Williams,  it  certainly 
could  not  be  sustained  in  our  day.  But  it  should  be  recollected 
that  these  were  times  of  warm  party  strife  and  excitement,  and  to 
suppose  that  the  opinions  of  the  Chief-Justice  were  entirely  untinged 
by  his  known  political  predilections,  would  be  to  suppose  him  elevated 
above  human  weaknesses  and  imperfections.  It  has  been  observed  of 
a  more  profound  lawyer  than  Ellsworth,  and  of  a  greater  judge  than 
Jay — none  other  than  the  illustrious  Mansfield  himself — that  in  those 
cases  wherein  political  considerations  mix  themselves  with  the  trial, 
and  the  result  might  be  supposed  to  affect  party  interests  or  party 
prejudices,  he  was  no  longer  the  same  lex  loquens,  the  same  living  pat- 
tern of  justice.*  Nor  is  it  discreditable  either  to  Jay  or  Ellsworth, 
even  as  a  rule  of  municipal  law ;  and  the  opinion  of  Judge  Johnson,  which,  it 
must  be  admitted,  is  precise  and  definite  upon  the  point,  was  a  dissenting  opinion. 
I  cannot  agree,  therefore,  with  the  author  of  the  Notes  to  the  "  State  Trials/'  that 
the  case  of  Shanks  vs.  Dupont  closed  "  the  long  circuit  of  doubts  and  reserva- 
tions," and  brought  the  Court  "back  again  at  the  position  of  Williams'  case,  that 
allegiance  without  mutual  consent  is  indissoluble." 

*  As  for  example,  in  questions  of  libel,  that  he  leaned  against  the  freedom  of 
discussion,  and  favored  those  doctrines  then  current,  which  withdrew  the  cogni- 


272  LIVES  OF  THE  CHIEFJUSTICES. 

under  similar  circumstances,  to  attribute  an  honestly  entertained,  but 
erroneous  judgment,  to  the  insensible  bias  of  warm  party  feelings  and 
political  prejudices,  when  the  great  mind  of  Mansfield  himself  could 
not  entirely  surmount  them. 

Though  Judge  Ellsworth  received  his  appointment  as  envoy  to 
France  on  the  27th  of  February,  1799,  he  did  not  proceed  upon  the 
mission  until  the  following  November,  and  in  the  mean  time  con- 
tinued, without  interruption,  to  discharge  his  judicial  duties.  It  was 
during  this  interval  that  Williams  was  tried  ;  and,  indeed,  so  late  as 
October  of  the  same  year  he  was  upon  the  point  of  setting  out  to  hold 
the  Vermont  Circuit  Court,  in  place  of  Judge  Gushing,  who  had  been 
suddenly  taken  ill ;  but  the  recovery  of  that  judge  relieved  him  of  this 
duty,  and  gave  him,  as  he  says,  time  "  to  sit  down  and  think "  before 
proceeding  on  the  French  mission. 

He  presided  for  the  last  time  at  a  general  term  of  the  Court  in 
August  of  that  year,  and  among  the  cases  decided  at  this  session  de- 
livered the  judgment  in  Turner  vs.  The  Bank  of  North  America,*  in 
which  the  principle  is  settled  that  a  cause  in  the  Circuit  Court  must 
affirmatively,  and  upon  the  face  of  the  pleadings,  appear  to  be  within 
the  jurisdiction  of  the  Court,  otherwise  the  judgment  will  be  reversed 
in  the  Supreme  Court,  as  jurisdiction  is  never  to  be  presumed.  I  men- 
tion this  decision  as  exhibiting  the  marked  aversion  of  Ellsworth 
to  dispose  of  a  cause  otherwise  than  strictly  upon  the  merits,  with- 
out regard  to  technical  defects.  The  objection  to  the  record  was, 
that  the  pleadings  did  not  show  the  parties  to  be  citizens  of  different 
States,  or  one  of  them  an  alien,  a  fatal  jurisdictional  defect,  but  one 
which  he  thought  might  better  have  been  raised  in  the  Court  below. 
"  It  is  to  be  exceedingly  regretted,"  he  says,  "  that  exceptions  which 
might  be  taken  in  abatement,  and  often  cured  in  a  moment,  should 
be  reserved  to  the  last  stage  of  a  suit  to  destroy  its  fruits." 

Not  only  did  Judge  Ellsworth  continue  in  the  discharge  of  his  judi- 
cial functions  down  to  the  last  moment,  but  he  actually  proceeded  on 
his  mission,  as  his  predecessor  Jay  had  done  before  him,  without 
resigning  his  seat.  At  that  period  it  was  not  deemed  incompatible 

zance  of  the  question  from  the  jury  to  vest  it  in  the  Court. — See  Lord  Brougham's 
"  Sketch  of  Mansfield."    Statesmen  of  Times  of  George  HI.,  Vol.  L  p.  113. 
*  4  Dallas'  Reports,  8. 


OLIVER  ELLSWORTH. 


273 


with  the  highest  judicial  station,  to  annex  to  it  an  appointment  of  a 
purely  political  character.  Thus,  not  only  did  both  Jay  and  Ells- 
worth hold  the  office  of  Chief-Justice  and  that  of  foreign  minister  at 
the  same  time,  but  even  their  successor,  Marshall,  continued  for  a 
short  period  to  discharge  the  apparently  inconsistent  duties  of  Judge 
of  the  Supreme  Court  and  Secretary  of  State. 

The  history  of  the  second  French  mission,  so  celebrated  in  the 
annals  of  our  diplomacy,  is  doubtless  familiar  to  the  reader.  It  seems 
necessary,  however,  in  this  connexion,  to  notice  it  briefly,  as  a  part  of 
Judge  Ellsworth's  public  life,  too  important  by  far  to  be  passed  over 
entirely  in  silence. 

The  unsuccessful  result  of  the  negotiation  of  Marshall,  Pinckney,  and 
Gerry,  and  the  treatment  those  gentlemen  had  received  from  the  autho- 
rities of  the  French  Republic  (which  will  be  noticed  in  another  part  of 
this  work)  had  created  a  deep  feeling  of  indignation  throughout  the 
whole  country,  and  particularly  among  the  friends  of  the  Federal  admin- 
istration. It  had  called  out  the  celebrated  declaration  of  President 
Adams  to  Congress — "  I  will  never  send  another  minister  to  France  with- 
out assurances  that  he  will  be  received,  respected,  and  honored,  as  the 
representative  of  a  great,  free,  powerful,  and  independent  people  ;"  a 
declaration  that  was  greeted  at  the  time  with  something  like  universal 
acclamation.  The  ultra-Federal  leaders — those  who  subsequently  com- 
prised the  Hamilton  wing  of  the  party,  whom  Mr.  Adams  did  not 
hesitate  afterwards  to  denounce  with  bitter  and  fierce  invective, 
as  the  "  British  faction  ;"  *  and  who  regarded  all  overtures  for  nego- 
tiation and  all  terms  of  friendship  with  "  the  regicide  Republic "  as 
incompatible  with  the  national  honor  and  safety — heard  with  ill-con- 
cealed disgust  and  dissatisfaction  the  announcement  that  the  President 
had  rather  suddenly  determined  to  send  another  embassy  to  France 
Accordingly  when  the  name  of  the  envoy  first  proposed — William 
Vans  Murray — was  sent  in  to  the  Senate,  it  was  stmnirly  intimated 
that  he  would  not  be  confirmed.  "Some  of  the  President's  mil 

*  In  one  of  his  famous  Cunningham  letters,  ^f  r.  Adams  remarks,  that  he  could  not 
have  lived  through  another  year  of"  such  labors  and  cares  as  were  studiously  and 
maliciously  accumulated  upon  me,  by  the  French  faction,  and  the  l!riti>h  faction  ; 
the  former  aided  by  the  republicans,  and  the  latter  by  Altxamitr  Hamilton  and 
his  satellites." 

18 


274  LIVES   OF    THE  CHIEF-JUSTICES. 

friends,"  says  the  Secretary  of  State,  in  a  letter  to  Murray,  "  endea- 
vored to  persuade  him  to  withdraw  the  nomination.  He  was  inflexible. 
They  then  determined  to  put  a  negative  upon  it."  Mr.  Adams,  with 
the  characteristic  promptness  which  so  strongly  marked  all  his  actions, 
anticipated  this  design,  and  two  days  afterwards  sent  in  the  names  of 
Oliver  Ellsworth  and  Patrick  Henry,  with  that  of  Mr.  Murray,  as 
joint  envoys  to  the  French  Republic.  The  "  President's  real  friends" 
thereupon  thought  better  of  the  matter,  and  consented,  though  with 
some  hesitation,  to  confirm  the  appointments.  Mr.  Henry,  having 
declined  on  account  of  his  age  and  infirmities,  Governor  Davie,  of 
North  Carolina,  was  substituted. 

It  was  with  unfeigned  reluctance  that  Judge  Ellsworth  consented  to 
accept  this  commission.  It  was  extremely  distasteful  to  him,  not  on 
personal  considerations  alone,  but  also  no  doubt  because  he  was  satis- 
fied that  it  was  viewed  with  disfavor  by  a  large  portion  of  the  leading 
men  of  the  party  with  whom  he  acted.*  The  editor  of  the  Wolcott 

*  The  French  mission  was  the  cause,  if  not  of  the  original  difficulty,  at  least  of 
the  final  rupture  between  President  Adams  and  the  Hamilton  branch  of  the  Fede- 
ral party,  including  three  members  of  his  own  Cabinet,  Pickering,  McHenry,  and 
Wolcott.  The  charges  against  Mr.  Adams  by  his  Federal  friends — or  perhaps 
more  properly  enemies — of  his  having  violated  the  solemn  declaration  of  his  mes- 
sage to  Congress  of  June  21st  by  nominating  the  embassy  to  France,  do  not  appear 
to  be  just.  He  has  himself  ably  and  successfully  vindicated  his  action  in  this  re- 
spect in  his  celebrated  "  Cunningham  Letters,"  to  which  it  is  scarcely  necessary 
here  to  allude.  "Assurances"  certainly  were  given  by  the  French  government, 
and  conveyed  in  perhaps  as  direct  a  manner  as  could  have  been  reasonably  ex- 
pected. These  assurances  were  received  partly  through  Mr.  Gerry  on  his  return 
from  France,  but  principally  through  Mr.  Murray,  the  American  Minister  at  the 
•Hague.  In  Talleyrand's  letter  to  the  French  Charge  at  the  Hague,  the  assurances 
required  by  Mr.  Adams'  message  to  Congress  are  made  almost  in  identical  words. 
"  Whatever  plenipotentiary  the  government  of  the  United  States  might  send  to 
France  to  put  an  end  to  the  existing  differences  between  the  countries,  would  be 
undoubtedly  received  with  the  respect  due  to  the  representatives  of  a  free,  inde- 
pendent, and  powerful  nation."  He  then  charges  him  to  communicate  this  to 
Mr.  Murray  that  it  might  be  transmitted  to  the  government  of  the  United  States. 
"  Carry  therefore,  citizen,"  he  says,  "to  Mr.  Murray,  these  positive  instructions,  in 
order  to  convince  him  of  our  sincerity,  and  prevail  upon  him  to  transmit  them  to 
his  government."  These  overtures  were  considered  by  Mr.  Adams  to  be  substan- 
tially the  "  assurances  "  he  had  required  as  preliminary  to  an  appointment,  and 
accordingly  on  his  own  responsibility,  and  without  consultation  with  his  Cabinet, 


OLIVER  ELLSWORTH.  275 

papers — who  has  certainly  made  out  a  very  ingenious  case  in  favor  of 
the  Cabinet  and  against  the  President  in  his  history  of  the  Adams' 
Administration — states  that  Ellsworth  would  have  refused  to  go  but 
for  the  apprehension  that  Madison  or  Burr  would  have  been  sent  in 
his  place.  He  alleges,  also,  but  upon  what  authority  it  does  not  ap- 
pear, that  the  Chief-Justice  to  the  last  disapproved  the  mission* 
This  certainly  seems  to  have  been  a  mistake.  Though  Ellsworth  had 
doubtless  advised  a  suspension  of  the  mission  until  "  it  could  be  bet- 
ter seen  "  to  whom  the  envoys  should  be  accredited,  yet  there  is  no 
evidence  that  he  did  not  enter  upon  the  duty  with  alacrity,  and  hope- 
ful of  success.  Indeed,  from  the  statements  that  have  been  given,  it 
would  seem  that  he  even  yielded  his  opinion  as  to  the  policy  of  sus- 
pending the  mission. 

In  the  early  part  of  October  President  Adams  called  upon  him  at 
his  seat  in  "Windsor.  Mr.  Adams  left  the  following  statement  of  the 
interview  :  "  He  was  perfectly  candid.  Whatever  should  be  the 
determination,  he  was  ready  at  an  hour's  warning  to  comply.  If  it 
was  thought  best  to  embark  immediately,  he  was  ready.  If  it  was 
judged  more  expedient  to  postpone  it  for  a  little  time,  though 
that  might  subject  him  to  a  winter  voyage,  that  danger  had  no  weight 

he  sent  in  to  the  Senate  the  came  of  Mr.  Murray  as  Minister  to  France,  with  whom 
Ellsworth  and  Davie  were  afterwards  joined.  It  was  not  intended,  however,  as  he 
remarked  in  his  message  to  the  Senate,  that  they  should  proceed  on  their  mission 
until  they  had  "  received  from  th%Executive  Directory  assurances,  signified  by 
their  secretary  of  foreign  relations,  that  they  shall  be  received  in  character ;  that 
they  shall  enjoy  all  the  prerogatives  attached  to  their  character  by  the  law  of  na- 
tions ;  and  that  a  minister  or  ministers  of  equal  powers  shall  be  appointed  and 
commissioned  to  treat  with  them."  This  was  communicated  by  Murray  to  Talley- 
rand, who  promptly  replied  in  his  official  character,  giving  unequivocally  the 
assurances  required.  On  receipt  of  this  communication  the  envoys  were  directed 
to  hold  themselves  in  readiness,  and  their  instructions  were  prepared.  The  further 
delay  of  two  or  three  months  which  occurred  was  occasioned  by  the  Revolution 
of  the  30th  Prairial.  The  French  Directory,  it  was  supposed,  would  soon  fall  to 
pieces,  and  this  was  deemed  by  the  Cabinet  a  sufficient  reason  for  an  entire  sus- 
pension of  the  mission.  Mr.  Adams,  however,  thought  differently ;  and,  after 
waiting  a  reasonable  time,  took  upon  himself  the  responsibility  of  sending  off  the 
envoys,  contrary  to  the  known  wishes  of  his  Cabinet  advisers.  This  kindled  the 
flame  which  during  the  remainder  of  his  administration  continued  to  blaze  with 
intense  energy  and  warmth. 
*  2  Gibbe'  Wolcott,  274. 


2Y6  LIVES  OF   THE  CHIEF-JUSTICES. 

with  him.  If  it  was  concluded  to  defer  it  till  the  spring,  he  was  will- 
ing to  wait.  In  this  disposition  I  took  leave  of  him."  This  state- 
ment of  Mr..  Ellsworth's  willingness  to  embark  on  the  mission  is  cor- 
roborated lay  what  took  place  a  few  days  after  at  Trenton,  where  the 
President  met  Governor  Davie  and  Ellsworth  at  dinner.  An  idea, 
strangely  enough,  seems  to  have  been  entertained  at  that  time,  that 
the  first  arrivals  from  Europe  would  bring  what  some  of  the  Federal 
leaders  called  "  the  glorious  news "  that  Louis  XVIII.  had  been 
restored  to  the  throne  of  France.  Ellsworth,  it  appears,  shared  in 
this  delusion,  which  failed,  however,  to  deceive  the  keener  and  more 
experienced  mind  of  Mr.  Adams.  "Is  it  possible,  Chief-Justice," 
asked  the  latter,  that  you  can  seriously  believe  that  the  Bourbons  are 
or  will  be  soon  restored  to  the  throne  of  France  ?"  "  Why,"  said 
Ellsworth,  smiling,  '•'  it  .looks  a  good  deal  so."  Mr.  Adams  was  not 
afraid,  he  said,  to  stake  his  life  upon  it,  that  they  would  not  be  re- 
stored in  seven  years,  if  they  ever  were,  and  thereupon  entered  into  a 
detail  of  the  reasons  of  his  opinion,  which  lie  declares  convinced  Ells- 
worth, who  expressed  himself  satisfied  and  willing  to  embark  as  soon 
as  the  President  pleased.* 

That  Ellsworth  was  not  only  willing  to  proceed  on  the  mission,  but 
actually  assented  to  the  policy  which  dictated  it,  and  was  hopeful  of 
its  success,  is,  I  think,  fully  evident,  from  his  subsequent  conduct. 
Writing  to  Wolcott  on  the  1st  of  October,  he  says,  "I  think  that  the 
prospects  of  that  distracted  country  (France)  and  of  Europe,  and  of 
course  our  own,  begin  to  brighten.  Pray  indulge  in  the  same  thought  if 
you  can,  for  you  certainly  stand  in  need  of  it."  "f"  A  short  time  after,  he 
thoroughly  disgusted  both  Pickering  and  Wolcott  by  repeating  the 
President's  remark,  in  answer  to  the  argument  that  the  French  nego- 
ciation  would  produce  a  war  with  England,  "  What  if  it  does,  Eng- 
land cannot  hurt  us."  This  remark  was  too  much  for  Mr.  Pickering. 
"  I  had  not  patience  to  hear  more,"  he  observes ;  J  and  left  Ells- 

*  See  Mr.  Adams' Cunningham  Letters.  This  statement  is  not  considered  en- 
tirely reliable  lay  Mr.  Gibbs,  who,  in  his  anxiety  to  make  out  a  strong  case  against 
President  Adams,  seems  disposed  almost  to  send  Ellsworth  on  a  compulsory  mi* 
sion. 

t  2  Gibbs'  Wolcott,  266. 

$  Letter  to  General  Washington,  October  24th,  1799. 


OLIVER  ELLSWORTH.  277 

worth,  doubtless  under  the  impression  that  he  had  become  a  back- 
slider from  that  orthodox  doctrine  which  regarded  hostility  to  France 
and  friendship  for  England  as  an  essential  element  of  political  faith. 

The  truth  is,  Ellsworth  did  not  sympathize  with  the  friends  of 
Hamilton  in  the  cabinet  in  their  opposition  to  this  important  measure 
of  Mr.  Adams'  administration,  which  was  doubtless  then  considered, 
as  it  has  subsequently  been  characterized  by  an  able  advocate  of 
their  views,  "  the  crowning  effort  of  democratic  skill  and  sagacity."  * 
That  opposition  was  based  upon  the  theory  that  there  was  neces- 
sarily something  Jacobinical  and  democratical  in  everything  .  which 
looked  like  a  negotiation  with  the  French  Republic,  and  that  this 
of  course  was  to  be  avoided.  "All  deprecate  the  French  mission," 
says  Pickering,  in  a  letter  to  General  Washington,  "  as  fraught  with 
irreparable  mischief."  The  Chief-Justice,  however,  seems  to  have 
risen  superior  to  these  narrow  views  of  party  policy.  For  a  politician 
of  those  times  he  might  have  been  considered  a  moderate  partisan. 
He  was  one  of  those  who  had  not  yet  learned  to  regard  a  Democrat 
as  "  out  of  the  pale  of  social  sympathy  ;"  and,  besides,  he  had  the 
sagacity  to  perceive,  what  others,  in  the  blindness  of  party  zeal,  were 
so  prone  to  overlook — the  importance  of  preserving  peace  with  France 
as  well  as  with  England,  and  of  extending  by  treaty  the  commercial 
intercourse  of  the  country.  With  these  statesmanlike  views,  Oliver 
Ellsworth,  though  a  Federalist,  and  attached  by  strong  ties  to  that 
party  which  regarded  the  measure  with  so  much  disfavor,  set  out  with 
Governor  Davie  to  negotiate  a  treaty  with  the  French  Republic. 

The  envoys  left  Newport  on  the  3rd  of  November  for  Lisbon,  where 
they  arrived  on  the  27th.  Before  they  reached  tha^place,  however, 
a  new  and  important  phase  was  presented  in  the  political  horizon  of 
France  and  Europe.  The  revolution  of  the  18th  of  Brumaire  (Novem- 
ber) 1799,  was  accomplished  ;  the  "  five  kings"  ha*  been  driven  out 
ignominously  from  the  Luxembourg  ;  and  the  fortunate  soldier  of 
Lodi  and  Arcola  had  risen  to  the  chief  power  in  the  State.  A  single 
day  in  Paris  had  overthrown  the  Republic  ;— one  throe  of  the  revolu- 
tionary earthquake  had  changed  the  face  of  Europe  and  the  world. 

These  great  events  had  transpired  while  the  American  envoys  were 
yet  tossed  on  the  bosom  of  the  Atlantic.    Fate  had  destined  that 
*  2  Gibbs'  Wolcott,  222. 


278  LIVES  OF  THE  CHIEF-JUSTICES. 

they  were  not  to  place  their  credentials  in  the  hands  of  the  profligate 
Barras  and  his  brethren  of  the  Directory,  nor,  as  Ellsworth  had 
vainly  conjectured,  into  those  of  the  restored  Bourbons.  They  ar- 
rived as  the  day  was  breaking  over  the  new  revolutionary  chaos — 
a  chaos  already  fast  subsiding  into  order — and  just  in  time  to  greet 
the  rising  star  of  Napoleou. 

Doubtful  whether  their  letters  of  credence  would  avail  them  with 
the  new  government,  the  envoys  hesitated  as  to  what  course  to  pur- 
sue. Though  slowly  proceeding  onward  toward  Paris,  they  took  the 
precaution  to  send  letters  in  advance  to  Talleyrand,  who  retained  his 
office  of  minister  for  foreign  affairs.  Bonaparte  had  the  sagacity  to 
see,  what  the  imbecile  folly  of  the  Directory  caused  them  to  overlook, 
the  importance  of  a  commercial  treaty  with  the  United  States.  The 
American  envoys  were  promptly  advised  that  the  form  of  their  letters 
would  present  no  obstacle,  and  that  they  were  "  expected  with  impa- 
tience, and  would  be  received  with  warmth."  Ellsworth  and  Davie 
thereupon  pushed  on  to  Paris,  which  they  reached  on  the  2nd  of 
March,  and  there  found  their  colleague,  Mr.  Murray,  who  had  arrived 
from  the  Hague  the  day  previous. 

Six  days  after  their  arrival  they  were  presented  to  the  first  consul 
in  form,  and  they  certainly  had  no  cause  then,  or  subsequently,  to 
complain  of  any  want  of  cordiality  in  their  reception.*  Bonaparte 
immediately  appointed  his  eldest  brother,  Joseph,  and  two  of  his 
councillors  of  state,  Fleurieu  and  Roederer,  to  treat  with  them.  Soon 
after  the  negotiations  commenced,  which  finally  ended  in  the  treaty 
of  the  30th  September,  1800. 

Almost  at  the  outset  of  the  negotiations  a  serious  difficulty  occur- 
red. The  American  ministers  had  been  instructed  to  insist  upon  in- 
demnities for  illegal  captures  made  by  privateers  of  the  Republic. 
The  French  commissioners,  on  the  other  hand,  insisted  upon  the  resto- 
ration of  the  treaties  of  1178  (which  it  was  alleged  the  United  States 

*  The  audience  was  a  public  one  in  the  Hall  of  the  Ambassadors,  at  the  palace 
of  the  Tuilleries,  and  was  attended  by  the  two  other  consuls,  the  ministers  of  the 
French  government,  the  ministers  of  foreign  powers,  and  other  public  functionaries  ; 
and  the  whole  presented  a  striking  contrast  with  the  studied  indignity  with  which 
the  Directory  had  treated  the  late  envoys  from  the  United  States.— Life  of  Davie, 
25  Sparks'  Am.  Biog. 


OLIVER  ELLSWORTH.  2ft) 

had  violated),  and  the  privileges  guaranteed  by  the  Convention  of 
1788.*  Both  parties  were  unwilling,  and  one,  at  least,  unable  to 
comply.  A  full  renewal  of  the  French  treaties  of  alliance,  &c.,  was 
impossible  by  reason  of  the  engagements  contracted  by  Mr.  Jay's 
treaty  with  Great  Britain.  This  was  urged  by  the  Americans  ;  and 
on  the  other  hand,  the  French  commissioners  replied  "  that  their  real 
object  was  to  avoid  indemnities,  and  that  it  was  not  in  the  power  of 
France  to  pay  them."  f  In  other  words,  the  French  refused  to  pay 
indemnities  for  acts  growing  out  of  alleged  infractions  of  the  treaties, 
unless  those  treaties  were  restored,  which  certainly  seems  not  to  have 
been  unreasonable  ;  and  the  Americans  very  properly  refused  to 
accept  indemnities,  when  by  doing  so  they  must  "  subject  their  coun- 
try perpetually  to  the  mischievous  effects  of  these  treaties."  Here 
then  the  negotiations  came  to  a  stand  ;  and  here  it  was  the  opinion 
of  the  Hamilton  Federalists  they  should  have  finally  terminated.  Not 
so,  however,  thought  Ellsworth  and  his  associates.  Unable  to  agree 
upon  these  points,  instead  of  throwing  up  their  commissions  in  dis- 
gust, they  took  the  wiser,  more  politic,  and  more  statesmanlike  course 
of  negotiating  a  commercial  treaty — favorable  in  all  respects  to  their 
country — leaving  those  points  which  could  not  then  be  satisfactorily 
settled  for  a  future  "  definite  adjustment."  |  The  second  article  of 
the  treaty,  as  finally  agreed  upon,  provided  that  as  to  these  subjects 
(the  treaties  and  convention,  and  the  indemnities)  "the  parties  will  ne- 
gotiate further  at  a  convenient  time,  and  until  they  may  agree  upon 
these  points  the  said  treaties  and  convention  shall  have  no  operation, 
and  the  relation  of  the  two  countries  shall  be  regulated  as  follows."  § 

*  See  remarks  in  regard  to  the  origin  of  the  difficulties  with  France  in  subse- 
quent sketch  of  Marshall.— Post,  page  332,  and  note. 

t  See  a  full  account  of  this  negotiation  in  a  letter  by  the  American  Envoys  to 
Secretary  Marshall,  October  4th,  1800. 

J  It  is  not  a  little  remarkable  that  the  same  men  who  had  so  warmly  sustained 
the  incomplete  treaty  of  Jay,  should  have  so  obstinately  opposed  that  negotiated 
by  Ellsworth  and  his  associates,  which  certainly  compares  favorably  with  it  in 
every  respect.  But  it  is  to  be  recollected  that  the  party  politics  of  the  day  made 
a  vast  difference  between  a  negotiation  with  France  and  one  with  England. 

§  See  U.  S.  Statutes  at  large,  Vol.  8,  p.  178.  This  article  was  struck  out  by 
the  Senate  an,d  a  provision  inserted  that  the  treaty  should  remain  in  force  for  the 
term  of  eight  years.  Bonaparte  accepted  the  amendment  with  the  further  proviso 


280  LIVES   OF  THE  CHIEF-JUSTICES. 

As  to  all  other  matters,  the  provisions  of  the  treaty  were  ample  and 
satisfactory,  and  honorable  to  both  parties.*  The  debts  due  by  the 
French  government  were  covenanted  to  be  paid  as  though  no  misun- 
derstanding had  taken  place  ;  and  under  this  provision,  and  the  subse- 
quent treaty  of  1803,  claims  to  the  amount  of  twenty  millions  of  francs 
were  made  good  against  France,  so  late  as  the  administration  of  Pre- 
sident Jackson. 

The  commercial  relations  of  the  United  States  were  also  amply  pro- 
vided for  by  the  treaty.  Free,  ships  were  to  make  free  goods,  ^  and 

that  "  the  two  States  should  mutually  renounce  the  respective  pretensions  which 
are  the  subject  of  this  article."  In  this  shape  it  was  finally  ratified  by  the  Senate 
early  in  Mr.  Jefferson's  administration. 

*  The  fortunate  issue  of  these  negotiations  was  celebrated  by  the  French  com- 
missioners with  some  degree  of  pomp  and  idat.  Joseph  Bonaparte  gave  an  elegant 
entertainment  at  his  beautiful  seat  at  Monfontainc,  at  which  all  the  ambassadors 
were  present.  "  The  first  consul  went  there  accompanied  by  a  brilliant  and  nu- 
merous party.  Elegant  decorations  set  up  in  the  mansion  and  gardens  everywhere 
1  exhibited  France  and  America  united.  Toasts  suited  to  the  occasion  were  drank. 
The  first  consul  proposed,  '  The  names  of  the  French  and  the  Americans  who  died 
on  the  field  of  battle  for  the  independence  of  the  New  World.'  Lebrun  proposed, 
'  The  union  of  America  with  the  northern  powers,  to  enforce  respect  for  the  liberty 
of  the  seas.'  Cambaceres  gave  for  the  third,  '  The  successor  of  Washington.' " 
—Thiers1  Cons,  and  Empire,  Book  VII. 

t  The  principle  that  free  ships  make  free  goods,  that  is  to  say  that  the  property 
of  belligerents,  except  articles  contraband  of  war,  shall  not  be  liable  to  confiscation, 
when  found  in  neutral  vessels,  had  been  proclaimed  by  the  Empress  of  Russia  in 
1780,  and  acceded  to  by  all  the  great  commercial  powers,  except  Great  Britain, 
which  alone  resisted,  and  from  that  time  to  the  present  has  continued  successfully  to 
resist  the  introduction  of  the  principle  into  the  international  code.  America  first 
obtained  its  recognition  in  the  treaty  with  Prussia  in  1785,  which  was  closely  fol- 
lowed by  this  treaty,  negotiated  by  Ellsworth  and  his  associates.  The  Baltic 
powers,  about  the  same  time,  were  attempting  again  to  enforce  those  liberal  com- 
mercial principles,  so  favorable  to  the  commerce  and  prosperity  of  neutral  nations ; 
but  the  maritime  superiority  of  Great  Britain  soon  dissolved  the  league,  and  put 
down  the  attempt,  at  a  forcible  innovation  upon  what  was  regarded  as  the  settled 
principles  of  international  law.  During  the  wars  of  the  French  Revolution  our 
own  government  seems  to  have  practically  recognized  the  validity  of  the  English 
rule,  as  appears  by  the  correspondence  of  the  state  department  and  our  diplomatic 
agents  abroad.  It  was  virtually  conceded,  under  the  provisions  of  the  Jay  treaty, 
and  was  subsequently  repeatedly  sanctioned  by  decisions  of  the  Supreme  Court. 
(See  1  Kent's  Commentaries,  126  128.  Case  of  the  Nereide,  &c.)  The  right  of  a  bel- 
ligerent power  to  search  our  vessels  for  enemy 's  goods  seems  not  to  have  been  made 


OLIVER  ELLSWORTH.  281 

the  neutral  flag  to  protect  the  cargo  ;  and  commerce  between  the 
two  countries  was  made  reciprocally  free,  and  placed  upon  the  foot- 
ing  of  the  most  favored  nations.  Under  these  provisions  the  ships  of 
the  American  merchants  soon  secured  a  large  share  of  the  carrying 
trade  of  the  Atlantic,  and  the  United  States  entered  upon  that  career  oi 
commercial  prosperity,  which  is  unexampled  in  the  history  of  the  world 

The  treaty  was  of  course  disapproved  by  those  who  originally  op 
posed  the  mission,  and  who  regarded  its  consummation  as  but  anothei 
step  in  the  downfall  of  the  Federal  policy.  "  It  is  now  certain,"  says 
Wolcott,  in  a  letter  to  Pickering,*  "  that  the  mission  has  proved  as 
unfortunate  as  we  considered  it  at  the  time  it  was  instituted." 
a  point  of  controversy  in  the  discussions  which  led  to  the  war  of  1812  ;  the  gov- 
ernment merely  denying  that  the  right  extended  to  search  for  seamen  or  subjects. 
Great  Britain  conceded  nothing  on  the  subject  by  the  treaty  of  peace ;  nor  has  she 
done  so  in  any  subsequent  treaty  up  to  the  present  time.  The  recent  events  in 
Europe,  however,  appear  to  have  rendered  it  evident  to  the  British  government 
that  it  can  no  longer  maintain  a  doctrine  so  oppressive  and  unjust  to  the  rights  of 
neutral  nations.  The  time  has  at  •length  arrived  when  the  voice  of  a  majority  of 
the  nations  of  the  civilized  world  will  be  able  TO  CHANGE  an  arbitrary  rule  of 
international  law,  even  without  the  assent  of  that  nation  which  so  long  and  so 
perseveringly,  and  so  successfully  maintained  it.  America,  as  the  leading  neutral 
commercial  power,  is  of  course  the  first  to  assert  the  liberal  principles  of  commer- 
cial freedom  and  reciprocity  proclaimed  by  the  Baltic  league  in  1801,  and  em- 
braced in  the  Prussian  treaty,  and  the  French  treaty,  and  if  necessary  will  main- 
tain and  enforce  them  as  the  cardinal  principles  of  a  new  and  more  enlightened 
code  of  international  law.  It  is  gratifying  however  to  observe  that  England, 
though  apparently  reluctant  to  concede  the  principle,  seems  at  last  willing  that 
it  shall  be  practically  applied  as  a  part  of  the  code  of  nations.  •"  Her  Majesty 
is  willing  for  the  present,'"1  says  the  recent  proclamation  of  the  Queen,  "to 
waive  a  part  of  the  belligerent  rights  appertaining  to  her  by  the  law  of  na- 
tions." One  of  these  rights  which  her  Majesty  declares  herself  thus  willing  to 
forego,  is  "  the  right  of  seizing  enemy's  property  laden  on  board  a  neutral  vessel, 
unless  it  be  contraband  of  war."  It  may  well  be  believed  that  this  right,  thus 
waived  "  for  the  present,"  will  never  again  be  recognized  as  resting  upon  any 
known  principle  of  international  law,  certainly  not  by  either  th'e  express  or  im- 
plied assent  of  this  country,  without  which  it  would  be  somewhat  difficult  to  revive 
an  ol>solete  or  abrogated  principle  of  the  international  code.  Henceforth  the 
United  States,  as  a  neutral  nation,  will  stand  among  the  belligerents  of  Europe, 
on  the  broad  and  liberal  principles  of  the  treaty  negotiated  by  Ellsworth  and 
his  colleagues,  that  free  ships  make  free  goods,  and  that  the  neutral  flag  s-luill 
protect  the  cargo. 

*  December  28th,  1800.    2  Gibbs'  Wolcott,  4C1. 


282  LIVES  OF  THE  CHIEF-JUSTICES. 

What  seemed  to  strike  them  with  most  amazement  was  the  partici- 
pation of  Ellsworth  in  this  "  unfortunate"  business  ;  and  they  could 
account  for  it  only  on  the  hypothesis  that  sickness  had  impaired  or 
destroyed  his  intellect.  In  this  same  letter  Wolcott  remarks  :  "  You 
will  read  the  treaty  which  was  signed  with  France  with  astonishment. 
I  can  account  for  it  only  on  the  supposition  that  the  vigor  of  Mr. 
Ellsworth's  mind  has  been  enfeebled  by  sickness."  And  in  another  of 
about  the  same  date,  to  Hamilton  :  "  You  will  be  afflicted  on  reading 
the  treaty  with  France.  Mr.  Ellsworth's  health,  I  fear,  is  destroy- 
ed." *  Pickering  replies  in  the  same  lugubrious  strain  :  "  The  treaty 
with  France,  as  you  suppose,  has  excited  my  utter  astonishment. 
Davie  and  Murray  always  appeared  to  me  fond  of  the  mission,  and  I 
supposed  they  had  made  the  treaty  ;  but  when  informed  that  our 

friend,  our  highly  respected  and  respectable  friend,  Mr.  E was 

most  urgent  for  its  adoption,  my  regret  equalled  my  astonishment. 
The  fact  can  be  solved  only  on  the  ground  you  have  suggested."  f 

Sedgwick  entertained  similar  views.  He  thought  the  treaty  plainly 
showed  that  "  the  mind,  as  well  as  body,  of  Mr.  Ellsworth  are  ren- 
dered feeble  by  disease."  J  Guim  thought  the  thing  "  detestable," 
and  that  its  ratification  "  would  be  dishonorable."  §  Otis  saw  in  it 
but  "  another  chapter  in  the  book  of  humiliation  ;"  |[  and  even  John 
Marshall,  though  in  favor  of  ratifying  it,  was  "  far,  very  far  from 
approving  it."  ^f 

Such  was  the  general  opinion  entertained  by  Mr.  Hamilton  and  his 
friends.**  But,  upon  the  other  hand,  to  say  nothing  of  the  approval 

*  2  Gibbs'  Wolcott,  460. 

f  2  Gibbs'  Wolcott,  463. 

f  Sedgwick  to  Hamilton,  Dec.  17th,  1800.— 6  Hamilton's  Works,  491. 

§  Gunn  to  Hamilton,  Dee.  18th  and  January  9th.    Ibid.  492,  508. 

||  Otis  to  Hamilton,  Dec.  17th.    Ibid.  490. 

IT  Marshall  to  Hamilton,  January  1st,  1801.    Ibid.  502. 

**  Though  Hamilton  advised  the  ratification  of  the  treaty,  he  did  not  hesitate  to 
condemn  it  in  his  private  letters  to  his  friends.  Writing  to  Sedgwick  under  date 
of  December  22,  1800,  he  says :  "  The  Convention  with  France  is  just  such  an 
issue  as  was  to  have  been  expected.  It  plays  into  the  hands  of  France  by  the 
precedent  of  those  principles  of  navigation  which  she  is  at  this  moment  desirous 
of  making  the  basis  of  a  league  of  the  northern  powers  against  England.'' 
— Hamilton's  Works,  Vol.  6,  p.  495.  Similar  views  are  expressed  in  a  letter  to 


OLIVER  ELLSWORTH.  953 

of  the  republican  party,  let  us  hear  Mr.  Adams  vspeak,  whose  opinion 
is  certainly  entitled  to  some  weight.  He  considered  it,  he  said,  "the 
most  disinterested,  the  most  determined,  and  the  most  successful" 
action  of  his  whole  life.  "  Had  it  betrayed  a  single  point  of  essential 
honor  or  interest,"  he  exclaims,  with  his  accustomed  energy,  "  I  would 
have  sent  it  back  as  Mr.  Jefferson  did  the  treaty  with  England,  with- 
out laying  it  before  the  Senate.  If  I  had  been  doubtful,  the  Senate 
would  have  decided."  *  The  Senate  did  decide,  and,  with  the  amend- 
ment of  the  second  article,  ratified  the  treaty.f 

It  may  be  added  that  Ellsworth  himself,  though  not  obtaining  all 
he  desired,  was  fully  satisfied  with  the  general  results  of  his  labor. 
"  Be  assured,"  he  remarks,  in  a  letter  to  Wolcott,  "  more  could  not 
be  done  without  too  great  a  sacrifice,  and  as  the  reign  of  Jaco- 

Gouvern'eur  Morris,  to  whom  lie  points  out  as  an  objectionable  feature  the  article 
of  the  treaty  providing  that  free  ships  should  make  free  goods,  and  that  the 
flags  of  ships  of  war  shall  protect.  They  were  features,  he  thought,  which  would 
not  be  pleasant  to  the  British  Cabinet,  and  therefore  were  "  to  be  regj^tted  at  the 
present  moment."  Hamilton's  reasons  for  urging  the  ratification  of  the  treaty 
seem  to  have  been,  as  expressed  in  these  letters,  to  avert  "the  utter  ruin  of  the 
Federal  party  ;"  and  besides  he^  thought  it  better  "  to  close  the  thing  where  it  is, 
than  td  leave  it  to  a  Jacobin  administration  to  do  worse."  At  the  same  time,  he 
says,  he  wished  his  friends  in  the  Senate  to  declare  that  they  thought  "  the  treaty 
liable  to  strong  objections,  and  pregnant  with  dangers  to  the  interests  of  this 
country.'1'' 

How,  then,  it  might  be  asked,  could  Hamilton,  with  perhaps  the  same  pen  with 
which  he  had  traced  these  private  communications,  publicly  declare  the  treaty 
"  an  honorable  accommodation"?  In  that  caustic  Review  of  "  the  public  conduct 
and  character  of  John  Adams,  Esq.,  President,  &c.,"  which  he  published  about 
this  period,  he  remarks  :  "  The  final  issue  of  the  mission  in  an  honorable  accom- 
modation, may  compensate  for  the  sacrifice  of  consistency,  dignity,  harmony,  and 
reputation  at  which  it  was  undertaken."  In  this  same  paper,  Hamilton,  in  sus- 
taining his  position,  and  making  out  his  case  against  his  adversary,  seems  inclined 
to  concede  the  main  point  in  the  argument  of  the  opponents  of  the  treaty. 
"When,  afterwards,  commissioners  were  appointed,"  he  remarks,  "I  expressly 
gave  it  as  my  opinion  that  indemnification  for  spoliations  should  not  be  a  sine 
qua  non  of  accommodation." — 7  Hamilton's  Works,  714,  724. 

*  Cunningham  Letters,  No.  XII. 

t  Gouverneur  Morris  thought  with  this  amendment  and  the  retrenchment  of  the 
third  article,  which  provided  for  a  mutual  surrender  of  captured  vessels  of  war.  the 
treaty  would  be  "  no  bad  bargain,"  and  so  expresses  himself  in  a  letter  to  Hamil- 
ton.—6  Hamilton's  Works,  503. 


2$4:  LIVES  OF  THE  CHIEF-JUSTICES. 

binism  is  over  in  France,  and  appearances  are  strong  in  favor  of 
a  general  peace,  I  hope  you  will  think  it  was  better  to  sign  a  conven- 
tion than  to  do  nothing."  And  to  Pickering  :  "  My  best  efforts  and 
those  of  my  colleagues  have  not  obtained  all  that  justice  required,  or 
which  the  policy  'of  France  should  have  given.  Enough  is,  however, 
done,  if  ratified,  to  extricate  the  United  States  from  a  contest,  which  it 
might  be  as  difficult  to  relinquish  with  honor,  as  to  pursue  with  a  pros- 
pect of  advantage."  * 

The  moderation,  wisdom,  and  sound  sense  of  these  views,  and 
indeed,  the  whole  conduct  of  Ellsworth  in  undertaking  the  French 
negotiations,  strongly  recommended  him  to  moderate  and  enlightened 
men  of  both  parties  as  a  suitable  candidate  for  the  Presidency.  A 
caucus  of  the  moderate  Federalists  was  held  in  the  autumn  of  1800, 
at  which  it  was  said  this  project  was  determined  on  in  case  Mr.  Adams 
should  withdraw.  But  the  withdrawal  of  Mr.  Adams  was  impossible 
in  the  then  state  of  the  feud  between  himself  and  Hamilton  ;  and  be- 
sides, tha^  very  moderation  of  sentiment  which  recommended  Ells- 
worth to  one  portion  of  the  Federal  party,  utterly  estranged  him  from 
the  other. 

Meanwhile,  Ellsworth,  a  stranger  to  all  these  intrigues,  having 
completed  his  negotiations  in  France,  and  being  unable  on  account 
of  the  state  of  his  health  to  return  immediately  to  America,  was  pre- 
paring to  pass  over  into  England.  He  had  become  wearied  with 
his  residence  in  Paris.  A  stranger  to  the  language,  as  well  as  the 
customs  and  manners  of  the  French  people,  with  little  taste  for 
works  of  art,  or  the  conversation  of  savans  and  litterateurs,  and 
less  for  those  light  amusements  and  elegant  frivolities  which  make 
up  so  large  a  segment  of  metropolitan  life,  and  which,  indeed,  his 
rigid  and  austere  New  England  morals  did  not  suffer  him  to  ap- 
prove, he  found  but  little  pleas  are,  and  no  great  degree  of  sym- 
pathy in  the  society  which  surrounded  him.  Nor,  his  mission  being 
ended,  was  his  a  character  or  a  reputation  calculated  to  command 
those  nameless  attentions  which  might  have  served  to  render  a  longer 
residence 'in  France  agreeable.  Unlike  Franklin,  who  came  to  Ver- 
sailles under  the  prestige  of  a  reputation  that  drew  upon  him  the 
favorable  eye  of  royalty  itself,  the  plain  New  England  Judge  had 
*  2  Gibbs'  Wolcott,  434,  463. 


OLIVER  ELLSWORTH.  285 

come  to  Paris  unheralded  and  comparatively  unknown.*  In  that 
brilliant  circle  of  courtiers  and  soldiers  .which  the  first  consul  called 
around  him,  a  mere  civilian  or  jurist  stood  a  fair  chance  of  being  en- 
tirely lost  in  the  glittering  crowd.  Erskine  himself  experienced  the 
truth  of  this  a  year  or  two  later.  Utterly  eclipsed  in  the  shadow  of 
his  celebrated  countryman,  Mr.  Fox,  the  first  consul  brushed  past  the 
illustrious  advocate  with  the  abrupt  and  hasty  question,  "  Etes-vous 
legiste  ?"•  f  Nor  could  it  be  supposed  that  the  simple  manners  and 
austere  character  of  the  American  Judge  would  have  attracted  a 
greater  degree  of  attention.  Another,  and  perhaps  a  stronger  motive 
for  his  leaving  France  was  the  hope  of  his  obtaining  some  relief  to  the 
distressing  malady  which  afflicted  him,  by  the  use  of  the  mineral 
waters  of  England.  His  constitution  had  indeed  become  so  shattered 
as  to  render  it  uncertain  when  he  would  be  able  to  resume  his  judicial 
duties,  and  accordingly  he  sent  over  his  resignation  of  the  office  of 
Chief-Justice  before  leaving  France,  to  the  regret,  it  is  said,  of  his 
countrymen  of  all  parties.  "  Sufferings  at  sea,"  he  says,  in  a  letter 
to  Wolcott,  from  Havre,  J  "  and  a  winter's  journey  through  Spain, 

*  It  is  said  that  even  during  the  continuance  of  the  mission,  Ellsworth,  though 
at  the  head  of  the  embassy,  received  less  attention  than  one  at  least  of  his  col- 
leagues. The  private  Secretary  of  Governor  Davie  thought  that ''  the  imposing 
appearance "  of  that  gentleman,  his  "  dignified  deportment,"  and  what  he  calls 
"  a  slight  degree  of  hauteur,"  attracted  more  consideration  than  the  plainer  and 
more  homely  manners  of  his  colleague.  "  I  could  not  but  remark,"  says  the 
Secretary,  "  that  Bonaparte,  in  addressing  the  American  legation  at  his  levees, 
seemed  for  the  time  to  forget  that  Governor  Davie  was  second  in  the  commission, 
his  attention  being  more  particularly  directed  to  him."— Life  of  Davie,  25  Spark's 
Am.  Biog.  125. 

t  2  Roscoe's  British  Lawyers,  193. 

J  October  16th,  1800.    2  Gibbs'  Wolcott,  434. 

Mr.  Jefferson  seems  to  have  drawn  an  unwarrantable  inference  from  the  fact, 
that  the  Chief-Justice  remained  in  Europe  after  the  treaty  was  signed.  In  a  con- 
fidential letter  to  Madison  he  says  :  "  Ellsworth  remains  in  France  for  his  health. 
He  has  resigned  his  office  of  Chief-Justice.  Putting  these  two  things  together  we 
cannot  misconstrue  his  views.  He  must  have  had  great  confidence  in  Mr.  Adams' 
continuance,  to  risk  such  a  certainty  as  he  had."  3  Jefferson's  Writings,  448. 
Jefferson  speaks  of  the  treaty  in  the  same  letter  as  "  a  bungling  negotiation." 
Though  in  the  main  satisfied  with  it ;  he  considered  it  as  containing  "  gome  dis- 
agreeable features,"  and  was  of  the  opinion  that  it  would  "  endanger  the  compro- 
mitting  us  with  Great  Britain." 


286  LIVES  OF  THE  CHIEF-JUSTICES. 

gave  me  an  obstinate  gravel,  which,  by  wounding  the  kidneys,  has 
drawn  and  fixed  my  wandering  gout  to  those  parts.  My  pains  are 
constant,  and  at  times  excruciating  ;  they  do  not  permit  me  to  em- 
bark for  America  at  this  late  season  of  the  year  ;  nor,  if  there,  would 
they  permit  me  to  discharge  my  official  duties.  I  have,  therefore, 
sent  my  resignation  of  the  office  of  Chief-Justice,  and  shall,  after 
spending  a  few  weeks  in  England,  retire  for  winter-quarters  to  the 
south  of  France." 

Prompted  thus  by  ennui,  by  a  desire  to  obtain  some  relief  to  his 
disease,  and  perhaps  by  a  natural  curiosity  to  visit  the  land  of  his 
forefathers,  Ellsworth  passed  over  to  England.  Here,  it  seems,  he 
found  his  residence  more  agreeable,  and  he  contrived  to  pass  not  only 
with  profit,  but  with  pleasure,  a  much  longer  period  of  time  than  he 
had  intended.  The  name  of  the  American  Chief-Justice  was  not  un- 
known to  the  English  bench  and  bar  ;  it  had  found  its  way  into  West- 
minster Hall ;  and  on  his  arrival  in  England  he  was  received  with 
marked  respect  and  attention,  and  was  surrounded  by  a  group  of  emi- 
nent lawyers  and  judges,  by  one  or  two  of  whom,  it  is  said,  he  was 
asked  some  very  curious  and  perplexing  questions.  On  a  visit  to 
Westminster  Hall  he  was  invited  to  a  seat  by  the  side  of  Lord  Ken- 
yon,  then  sitting  with  Judge  Le  Blanc  and  Judge  Grose  in  the  King's 
Bench.  Of  that  visit  Mr.  Wharton,  in  his  entertaining  notes  to  the 
American  State  Trials,  has  given  the  following  lively  and  graphic 
description. 

"  It  was,  as  is  said,  during  the  train  of  arguments,  which  are  reported  in 
the  beginning  of  the  first  volume  of  Mr.  East,  that  the  American  Chief- 
Justice  visited  Westminster  Hall.  The  famous  case  of  Rex  vs.  Wad- 
dington  was  then  before  the  Court,  in  which  all  the  leaders  of  the  bar 
were  retained,  and  at  the  inception  of  which  a  scuffle  is  said  to  have  taken 
place  near  Mr.  Garrows'  Chambers,  between  the  emissaries  of  the  two 
contending  interests,  each  seeking  to  be  the  first  at  the  door  of  that  emi- 
nent advocate.  Mr.  Law  led  off  for  the  defendants  in  the  proceedings 
in  arrest  of  judgment,  and  was  followed  by  Mr.  Erskine,  Mr.  Garrow, 
and  Mr.  Scott.  Notwithstanding  Mr.  Jay's  previous  appearance-  at 
the  Court  of  St.  James,  and  the  contemporaneous  presence  there  of 
Mr.  King,  the  fame  of  their  accomplishments  had  not  reached  the 
King's  Bench,  whose  precincts  they  had  probably  never  invaded  ;  and 


OLIVER  ELLSWORTH.  287 

it  was,  consequently,  with  great  curiosity  that  the  elder  lawyers,  whose 
notions  of  America  had  been  derived  from  the  kidnapping  cases  which 
were  the  only  precipitate  cast  on  the  reports  of  the  Privy  Council,  by 
the  current  of  Colonial  litigation,  spied  out  the  American  Chief-Justice. 
Mr.  Ellsworth's  simple,  but  dignified  carriage,  so  much  like,  as  is  said, 
that  of  his  successor  on  the  bench,  was  in  happy  contrast  to  the  awk- 
wardness of  the  English  Chief-Justice  ;  and,  as  soon  as  it  was  discovered 
that,  though  his  worn  and  marked  features  bore  a  stamp  which  had  not 
then  become  familiar  to  the  English  eye,  he  was  neither  an  Indian 
nor  a  Jacobin,  two  things  regarded  as  equally  beyond  the  limits  of 
civilized  sympathy,  he  was  surrounded  by  a  knot  of  lawyers,  curious 
to  know  how  the  common  law  stood  transplanting.  Still,  the  obscurity 
which  hung  around  the  history  of  the  American  Republic,  could  not 
but  produce  some  confusion  ;  and  it  was  with  this  view  of  the  sup- 
posed creolishness  of  the  American  people — a  hybrid  between  the 
Englishman  and  the  Indian,  mingling  the  distinctive  powers  of  each 
without  that  power  of  perpetuating  them,  which  the  old  philosophers 
thought  belonged  only  to  unmixed  races — that  Judge  Grose,  ^vith 
an  air,  it  is  said,  of  grave  delicacy,  inquired  whether  the  obstruction 
of  the  course  of  descent  had  not  turned  fee  simples  into  life  estates. 
Perhaps  to  the  same  uncertainty  may  be  traced  the  question  which 
Mr.  Garrow  is  said  to  have  addressed  to  the  American  Judge,  "  Pray, 
Chief-Justice,  "in  what  cases  do  the  half-blood  in  America  take  by 
descent  ?" 

The  recreations  of  the  Chief-Justice  in  England  were  diversified  by 
travel ;  and  among  his  other  employments  he  amused  himself  with 
tracing  the  records  and  traditions  of  his  family.  On  a  small  stream,  a 
few  miles  from  Cambridge,  he  found  a  hamlet  called  Ellsworth.  To 
his  surprise  he  learned  that  many  of  the  inhabitants  of  the  hamlet 
bore  the  same  name.  Inquiring  the  origin  of  the  name,  he  was  told 
that  being  a  famous  place  for  eels,  the  inhabitants  had  called  it  Eds- 
worth — worth  being  the  Saxon  name  for  place.  By  a  trifling  altera- 
tion of  the  first  syllable  the  name  of  Ellsworth  is  obtained.  His  an- 
cestors had  emigrated  from  that  part  of  England  a  century  and  a  half 
before. 

On  his  return  to  America,  in  the  spring  of  1801,  Ellsworth  retired 
to  his  residence  at  Windsor,  but  the  people  of  Connecticut  were  yet 


288  LIVES  OF   THE  CHIEF-JUSTICES. 

unwilling  to  allow  him  that  repose  in  private  life  which  he  now  courted. 
Though  his  health  was  feeble,  and  his  constitution  impaired  by  disease, 
still  his  intellect  was  active  and  vigorous  as  ever.  It  is  true,  he  was 
no  longer  equal  to  the  labor  of  the  Federal  judiciary,  attended  as  it 
was  by  the  toil  and  fatigue  of  circuit  duty,  but  his  wisdom  and  experi- 
ence might  yet  be  available  in  the  legislative  and  judicial  councils  of 
his  own  State.  Though  the  war-worn  veteran  was  no  longer  fit  for 
foreign  service,  he  could  still  stand  sentinel  on  the  watch-towers  at 
home  and  guard  the  domestic  citadel.  He  was  accordingly  called, 
almost  before  the  dust  of  foreign  travel  had  been  shaken  from  his 
feet,  to  take  his  place  among  the  Assistants  of  the  Connecticut  Coun- 
cil, and  as  such  ex-officio  Judge  of  the  Supreme  Court  of  Errors 
of  the  State — a  position  which  eighteen  years  before  he  had  re- 
signed, to  hold  his  seat  on  the  bench  of  the  Superior  Court. 

Jonathan  Trumbull,  Governor  of  the  State,  presided  in  the  Supreme 
Court  of  Errors  at  the  time  Ellsworth  took  his  seat  in  it,  in  1802,  and 
continued  to  do  so,  down  to  the  termination  of  its  existence  as  a  Court 
in  1807.  The  Governor,  Lieutenant-Go vernor,  and  the  twelve  Assist- 
ants or  Senators,  at  that  time  composed  the  Court.  It  met  alternately 
at  Hartford  and  New  Haven,  and,  as  I  have  already  mentioned,  sat 
as  a  Court  of  Review  over  the  judgments  rendered  in  the  Superior 
Court.  Its  decisions  are  to  be  found  collected  in  Days  Connecticut 
Report?,  to  which  the  professional  reader  is  referred.  Though  com- 
prising a  great  variety  of  questions,  full  of  interest  to  the  lawyer  and 
jurist,  they  do  not  serve  'to  throw  much  additional  light  upon  Ells- 
worth's judicial  career.  The  judgments  delivered  are  generally  re- 
ported as  the  opinions  of  the  whole  Court,  without  connecting  them 
with  the  names  of  the  particular  member  or  members  by  whom  they 
were  drawn  ;  and  we  can,  therefore,  discover  but  few  traces  of  indivi- 
duality in  these  opinions,  and  of  course  cannot  undertake  to  determine 
what  particular  portions  of  them  may  have  been  the  emanations  of 
Judge  Ellsworth's  mind.  That  which  was  delivered  in  the  important 
case  of  Fitch  vs.  Brainerd,*  holding  a  will  of  real  estate  executed  by 
a  feme  covert  to  be  void — a  closely  written  and  logically  reasoned  legal 
argument — might  very  well  be  supposed  to  be  his.  It  sustained  a 
*  2  Day's  Reports,  163-194. 


OLIVER   ELLSWORTH.  289 

former  decision  made  by  the  Superior  Court  while  he  was  a  member 
of  that  tribunal,  in  the  case  of  Adams  vs.  Kellogg,  noticed  on  a  pre- 
ced?ug  page,*  which  the  Court  of  Errors  on  appeal  had  reversed. 

As  a  member  of  the  Council,  and  ex-offido  Judge,  Ellsworth,  though 
subject  to  occasional  fits  of  distressing  illness,  continued  his  annual 
attendance  upon  the  Legislature  and  the  Courts  down  to  the  close  of 
the  session  of  1801.  In  May  of  that  year  the  judiciary  system  of  the 
State  was  changed — the  Superior  Court  having  been  blended  with  the 
Court  of  Errors.  Desirous  of  giving'  dignity  to  the  new  system  by  the 
appointment  of  a  Chief-Justice  of  the  highest  character,  Judge  Ells- 
worth was  selected  to  fill  that  place.  He  consented  at  first  to 
accept,  but  before  the  close  of  the  then  session  of  the  Legislature, 
feeling  strong  symptoms  of  a  recurrence  of  his  disease,  and  persuaded 
that  he  could  not  survive  many  more  of  its  attacks,  he  declined  the 
appointment. 

Soon  after  he  was  seized  with  great  violence,  and  for  a  time  his 
life  was  despaired  of.  He  partially  recovered,  however,  and  was  so 
well  in  October  as  to  be  able  to  attend  during  part  of  the  session  of 
the  General  Assembly  at  New  Haven.  Returning  to  his  seat  at 
Windsor,  he  was  again  attacked,  this  time  fatally  ;  and,  after  a  severe 
illness  of  eight  days,  expired  in  the  midst  of  his  family,  on  the  26th  of 
November,  1807,  in  the  sixty-third  year  of  his  age. 

His  funeral  was  attended  on  Saturday  the  28th.  A  sermon  adapted  to 
the  melancholy,  occasion,  says  a  cotemporary  publication, f  was  preached 
by  the  Rev.  Mr.  Rowland,  of  Windsor,  to  a  large  assembly  collected 
from  that  and  the  adjacent  towns  to  pay  the  last  duties  to  their  de- 
ceased friend  and  fellow-citizen.  He  was  interred  in  the  burial-yard 
of  the  Congregational  Church  at  Windsor,  of  which  church,  from 
early  youth,  he  had  been  a  sincere,  an  exemplary,  and  a  consistent 
member. 

Mr.  Ellsworth  was  married  in  early  life  to  Miss  Abigail  Wolcott, 
a  daughter  of  William  Wolcott,  of  East  Windsor.  He  left  a  family 
of  several  sons  and  daughters.  One  of  these  sons  is  ex-governor  Ells- 
worth of  Connecticut,  now  living  at  Hartford,  and  a  Judge  of  the 
Supreme  Court  of  the  State,  a  gentleman  of  estimable  character,  and 
of  eminent  worth  and  abilities. 

•  Ante,  page  219.  f  American  Register  for  1807. 

19 


290  LIVES   OF    THE  CHIEF-JUSTICES. 

Judge  Ellsworth  was  endowed  with  a  strong  practical  judgment,  a 
vigorous  common  sense,  a  well-balanced  temper,  an  accurate  percep- 
tion, and  a  clear  and  ready,  if  not  a  quick  and  ingenious  understanding. 
Though  he  might  not  be  called  a  great  statesman,  he  was  certainly  an 
honest  and  useful  one  j  and  few  of  his  New  England  cotemporaries 
may  claim  a  more  honorable  niche  in  the  temple  of  fame.  If  not  a 
profoundly  learned,  he  was  ail  accurate  and  able  lawyer.  If  not  a 
brilliant  orator,  he  was  a  ready,  effective,  and  forcible  debater.  If 
not  pre-ominently  superior  as  a  judge,  he  certainly  brought  to  the 
bench  judicial  talents  of  a  very  high  order,  and  while  there  sustained 
himself  at  all  times  creditably,  and  sometimes  with  well-merited  dis- 
tinction ; — "  dignified  in  demeanor,  indefatigable  in  his  attention  to 
business,  patient  in  the  trial  of  causes,  perspicuous  and  convincing  in 
his  charges  to  the  jury." 

And,  above  all,  the  moral  character  of  Oliver  Ellsworth  was  sus- 
tained through  life  without  reproach,  and  it  lifted  him  far  above  the 
miserable  criminations  of  party  strife,  and  even  beyond  the  breath 
of  suspicion  itself.  "  In  all  the  public  stations  which  he  ever  filled 
with  so  much  reputation,"  says  the  writer  of  a  brief  notice  of  the 
Chief-Justice  at  the  time  of  his  decease,  "  Mr.  Ellsworth  evinced  an 
inflexible  integrity,  the  purest  morality,  and  the  most  unshaken  firm- 
ness and  independence.  In  the  most  intemperate  periods  of  our 
national  history,  when  the  foul  spirit  of  party,  like  the  scythe  of  time, 
has  mowed  down  virtue  and  talents,  almost  without  discrimination,  no 
person  has  attempted  to  blast  the  fame  of  Mr.  Ellsworth."  * 

The  public  man  who  leaves  behind  him  a  record  like  this — a  record 
which  even  the  tongue  of  calumny  itself  cannot  venture  to  impeach — 
need  fear  nothing  at  the  hands  of  posterity.  And  such  seems  to  have 
been  the  fortunate  lot  of  Mr.  Ellsworth.  It  is  said  of  him,  with  truth 
perhaps,  that  in  his  later  years  he  exhibited  a  degree  of  warmth  and 
feeling  in  the  political  contests  of  the  day  scarcely  consistent  with  the 
dignified  repose  of  age,  and  the  high  character  which  he  sustained. 
This  no  doubt  resulted  as  well  from  the  thoroughness  of  his  own  con- 
victions as  the  ardor  of  his  temper.  His  political  opinions,  whatever 
they  were — and  of  which  I  am  neither  the  advocate  nor  apologist — 
were  sincerely  entertained,  and  consistently  and  firmly  carried  out. 
*  American  Register  for  1807. 


OLIVER   ELLSWORTH.  291 

But  his  political  action,  decided  and  warm  though  it  might  h^ve 
been,  left  no  sting  behind.  In  the  language  of  his  eulogist,  "  No  per- 
son attempted  to  blast  the  fame  of  Mr.  Ellsworth." 

In  social  life,  it  is  added,  he  was  truly  estimable, — just  in  his  deal- 
ings, frank  and  sociable  in  his  disposition,  kind  and  obliging  in  his 
temper  ;  he  was  respected  and  beloved  by  his  neighbors  and  acquaint- 
ances. His  religious  sentiments  were  strong  and  earnest.  They  tinged 
all  his  thoughts  in  later  years,  and  imparted  to  his  actions  a  serious- 
ness sometimes  bordering  upon  austerity.  In  his  youth  he  had  been 
designed  for  the  ministry,  and  had  actually  pursued  the  study  of  theo- 
logy with  Rev.  Dr.  Bellamy,  an  eminent  divine  of  Connecticut,  the 
year  before  commencing  the  study  of  the  law.  Toward  the  close  of 
his  life  his  thoughts  were  fond  of  reverting  to  these  grave  subjects, 
and  he  devoted  a  considerable  portion  -of  his  time  to  the  examination 
and  study  of  controversial  divinity.  But  the  seriousness  of  his  mind 
never  verged  toward  bigotry,  nor  in  the  strictness  of  his  life  was  there 
a  particle  of  asceticism.  He  preserved  to  the  last  his  habitual  liberality 
of^thought,  warmth  of  social  sympathy,  and  serenity  of  temper 

The  epitaph  which  the  hand  of  affection,  of  ambition,  or  of  pride 
traces  upon  the  tomb  of  the  departed,  is  too  often  the  record  of  exag- 
gerated praise  or  of  fabulous  virtue.  Pointing  to  the  dust  of  the 
sleeper  beneath,  it  speaks  in  the  language  of  fulsome  eulogy,  or  of 
mocking  sarcasm,  and  describes  him 

"  Not  as  he  was,  but  as  he  should  have  been." 

Not  so,  however,  the  simple  and  modest  inscription  on  the  tomb  of 
Oliver  Ellsworth,  in  the  Congregational  church-yard  at  Windsor.  It 
contains  not  a  word  of  undeserved  eulogy,  not  a  syllable  of  exaggerated 
praise.  Dictated  by  affection,  but  chastened  by  a  severe  criticism,  it 
has  fortunately  anticipated  the  sober  judgment  of  posterity  :  "  Amia- 
ble and  exemplary  in  all  the  relations  of  the  domestic,  social,  and 
Christian  character  ;  pre-eminently  useful  in  all  the  offices  he  sus- 
tained ;  whose  great  talents,  under  the  guidance  of  inflexible  integrity, 
consummate  wisdom,  and  enlightened  zeal,  placed  .him  among  the  first 
of  the  illustrious  statesmen  who  achieved  the  independence,  anil 
established  the  Constitution  of  the  American  Republic." 


JOHN  MARSHALL 


JOHN    MARSHALL. 


IN  his  brilliant  speech  at  the  trial  of  Lord  George  Gordon,  Mr. 
Erskine  speaks  of  the  illustrious  judge  who,  for  jthirty-two  years,  had 
presided  in  the  Court  of  King's  Bench,  as  "  that  great  and  venerable 
magistrate  who  had  presided  so  long  in  this  great  and  high  tribunal, 
that  the  oldest  of  us  do  not  remember  him  with  any  other  impression 
than  the  awful  form  and  figure  of  Justice  !"  What  the  celebrated 
English  advocate  could  thus  appropriately  say  of  LORD  MANSFIELD, 
the  American  lawyer,  who,  twenty  years  ago,  frequented  the  Supreme 
Court  at  Washington,  might  with  equal  truth  and  propriety  have  said 
of  the  venerable  judge  then  presiding  in  that  august  tribunal.  The 
long  and  honorable  career  of  CHIEF-JUSTICE  MARSHALL  upon  the  bench 
of  the  Supreme  Court ;  the  purity  and  dignity  of  his  character,  and 
his  eminent  judicial  services,  naturally  suggest  a  comparison  with  the 
great  English  jurist.  Marshall  has  been  called  the  American  Mans- 
field. Such  a  comparison  to  almost  any  other  jurist  would  be  no 
ordinary  compliment,  for  it  implies  the  most  exalted  worth  and  the 
highest  grade  of  judicial  ability.  But,  to  Marshall,  the  compliment, 
though  just,  cannot  be  deemed  flattering.  It  is  suggestive,  at  least, 
of  an  imitative  greatness,  and  a  borrowed  and  reflected  lustre,  and 
can  add  no  new  dignity  to  a  character  like  his,  of  native,  innate 
strength,  and  original  independent  greatness.  Marshall  is  the  Amer- 
ican Mansfield,  as  Washington — greater  than  the  noblest  Roman  ol 
them  all — is  the  American  Cincinnatus.  The  skillful  pen  of  some 
future  Plutarch  may  run  an  ingenious  parallel ;  bnt  that  parallel  soon 
ends  ;  for  the  antique  virtue  of  the  old  Roman,  though  it  may  si; 


296  LIVES   OF   THE   CHIEF-JUSTICES. 

a  comparison  with  Washington,  cannot  measure  the  moral  elevation 
of  a  nature  like  his. 

"  None  but  himself  can  be  his  parallel." 

And  so  with  the  comparison  between  the  American  and  the  great 
English  judge.  Gifted  with  a  more  elegant  intellect,  and  endowed 
with  more  profound  learning  and  varied  accomplishments — with  a 
dignity  of  character  that  could  rise  superior  to  the  assaults  of 
Camden,  and  the  bitter  invective  of  Pitt — with  a  virtue  whose  pano- 
ply of  proof  could  ward  off  the  keen  and  glittering  shafts  of  Junius 
himself— and  with  those  stupendous  and  unrivalled  powers  of  judicial 
investigation  which  have  made  his  name  a  synonym  for  all  that  is 
great  in  jurisprudence — with  all  these,  Mansfield  himself  is  not  the 
prototype,  and  does  not  furnish  a  standard  by  which  to  measure 
the  full  capacity  of  Marshall.  The  American  Chief-Justice  is  some- 
thing more  than  a  Mansfield.  Equally  endowed  with  every  moral 
as  well  as  intellectual  attribute  which  can  adorn  the  highest  judi- 
cial character,  but  with  a  firmer  temper  and  a  loftier  courage,  a 
more  solid  and  compact  intellect,  a  more  robust  and  rugged  man- 
hood, he  stands  before  us,  if  not  superior  as  a  judge,  yet  greater  as  a 
man.  Erskine  could  say  of  Mansfield,  not  in  the  warm  and  glowing 
language  of  eulogy,  but  in  the  sober  words  of  truth,  that  he  was  "  a 
man  of  whom  any  country  might  be  proud  ;"  and  in  like  manner  could 
Pinkney — the  Erskine  of  the  American  bar — say  of  the  venerable 
Marshall,  that  he  was  "  born  to  be  the  Chief-Justice  of  any  country 
into  which  Providence  should  have  cast  him." 

I  approach  the  task  of  attempting  to  sketch  the  life  and  judicial 
services  of  this  eminent  man  with  much  hesitation.  I  am  sensible  of 
its  magnitude,  and  of  the  difficulty  of  executing  it  in  an  acceptable  man- 
ner. His  judicial  career  alone  extends  through  a  continuous  period 
of  thirty-five  years.  I  believe,  if  not  the  longest,  it  is  the  most  suc- 
cessful, the  most  brilliant,  the  most  honorable  of  any  on  record.  Its 
history  is  the  history  of  the  Supreme  Court  through  this  entire  period. 
Its  published  decisions  alone  fill  more  than  thirty  volumes  of  Reports. 
Nothing,  therefore,  but  a  general  survey,  a  mere  glance  at  the  judicial 
labors  of  Marshall  will  be  practicable  within  the  plan  I  have  marked  out. 
Independent  of  this,  and  before  coming  to  the  Bench  of  the  Supreme 


JOHN  MARSHALL.  297 

Court,  he  has  a  history  of  no  ordinary  interest — a  life  full  of  incident, 
full  of  honorable  action,  and  intimately  interwoven  with  the  civil  and 
diplomatic  history  of  the  times.  This  portion  of  his  career  I  approach 
with  the  more  confidence,  for  it  is  not  entirely  a  new  and  untrodden 
path.  The  copious  narrative  *  of  a  brother  on  the  bench,  who,  for 
twenty-three  years,  sat  by  his  side  in  the  same  high  tribunal — a  narra- 
tive drawn  with  a  nicely  discriminating  pen,  but  all  glowing  in  the 
warm  sunshine  of  a  sincere,  a  generous,  a  profound,  an  almost  reveren- 
tial admiration — will  throw  light  upon  that  path,  and  enable  me  to 
pursue  it  with  unerring  certainty.  This  narrative  of  Judge  Story 
bears  the  highest  marks  of  authenticity  ;  most  of  its  facts  are  evidently 
drawn  from  the  lips  of  the  Chief-Justice  himself,  and  its  estimate  of 
Judge  Marshall's  judicial  services  and  character  is  made  with  a  per- 
sonal knowledge  derived  from  an  intimate  and  unbroken  friendship, 
and  an  almost  daily  association  of  a  quarter  of  a  century.  I  shall 
avail  myself  of  its  statements  so  far  as  it  may  be  useful  or  proper  to 
do  so,  supplying  from  authentic  historical  and  other  sources  such  de- 
tails of  Judge  Marshall's  public  and  political  career  as  I  have  been 
able  to  obtain  and  the  subject  may  require. f 

The  grandfather  of  Chief-Justice  Marshall  was  a  native  of  Wales. 
He  settled  in  Westmorland  County,  Virginia,  about  the  year  1730, 
where  he  married  Elizabeth  Markham,  a  native  of  England.  This 
gentleman's  eldest  son,  Thomas,  the  father  of  the  Chief-Justice,  in- 
herited the  family  estate  called  "  Forest,"  consisting  of  a  few  hundred 
acres  of  poor  land  in  Westmorland.  He  removed  from  this  county  to 
Fauquier,  soon  after  attaining  the  age  of  manhood,  and  having  inter- 
married with  Mary  Keith,  by  which  he  became  connected  with  the 
Randolphs,  he  seated  upon  a  small  farm  at  a  place  called  Germantown, 
where  John  Marshall  was  born.  The  great  proprietor  of  the  North- 
ern neck  of  Virginia,  including  Fauquier  County,  was  at  that  time 

*  A  Discourse  before  the  Suffolk  Bar  on  the  Life,  Character,  and  Services  of 
Chief-Justice  Marshall,  by  Joseph  Story.  October  15th,  183b. 

f  It  may  be  remarked,  that  in  1828  Judge  Story  published  a  Sketch  of  Chief- 
Justice  Marshall  in  the  North  American  Review.  This  was  subsequently  retouch- 
ed by  him  for  the  National  Portrait  Gallery,  and  became  the  basis  of  his  more 
elaborate  discourse  before  the  Suffolk  Bar.  The  latter  may  be  found  in  Story's 
Miscellanies,  edited  by  his  son,  and  recently  published. 


298  LIVES  OF   THE  CHIEF-JUSTICES. 

Lord  Fairfax,  who  gave  Gveorge  Washington  the  appointment  of  sur- 
veyor in  the  Western  part  of  his  territory.  Washington  employed 
Thomas  Marshall  in  the  same  business.  They  had  been  near  neigh- 
bors from  birth,  associates  from  boyhood,  and  were  always  friends.* 

Thomas  Marshall,  though  a  planter  of  retired  habits  and  narrow 
fortune,  was  a  man  of  great  energy  of  character  and  vigor  of  intellect. 
When  Washington  received  the  command  of  the  American  armies  in 
the  war  of  the  Revolution,  his  friend  and  associate,  Colonel  Marshall, 
left  his  estate  and  his  large  family,  and  embarked  in  the  same  cause. 
He^was  placed  in  command  of  the  third  Virginia  Regiment  in  the 
Continental  establishment,  and  served  with  distinction  under  the  im- 
mediate orders  of  Washington,  during  the  darkest  and  most  eventful 
period  of  the  war.  This  regiment  performed  very  severe  duties  during 
the  campaigns  of  1776  and  1777.  It  was  present  under  the  orders 
of  Marshall  at  the  battle  of  Trenton,  and  subsequently  on  the  bloody 
field  of  Brandywine,  where  father  and  son  served  in  different  regi- 
ments, and  each  distinguished  himself  by  good  conduct  and  heroism. 

Though  without  the  advantages  of  an  early  education,  Colonel 
Marshall  was  a  man  not  only  of  great  native  endowments,  but  of  con- 
siderable mental  culture.  He  was  a  practical  surveyor,  adequately 
acquainted  with  the  mathematics  and  astronomy,  and  familiarly  con- 
versant with  history,  poetry,  and  general  literature,  of  which  he 
possessed  most  of  the  standard  works  in  the  language  ;  and  these 
were  the  means,  which,  under  his  fostering  attention,  served  to  com- 
plete all  the  early  education  his  distinguished  son  received.f  The 
care  and  attention  thus  bestowed  were  neither  lost  nor  forgotten. 
Long  after  that  son  had  arrived  at  the  high  station  which  he*  so  long 
adorned,  he  was  accustomed,  in  private  and  familiar  conversation,  to 
speak  of  his  father  in  terms  of  affectionate  and  reverential  admiration. 
"  My  father,"  he  would  say,  "  was  a  far  abler  man  than  any  of  his  sons. 
To  him  I  owe.  the  solid  foundation  of  all  my  own  success  in  life." 

Such  was  the  stock  from  which  JOHN  MARSHALL  sprang.  He  was 
born  at  Germantown,  Virginia,  on  the  24th  of  September,  1755,  and 
was  the  eldest  of  a  family  of  fifteen  children.  A  few  years  after  his 

*  Sketch  of  Chief-Justice  Marshall,  and  eulogy  by  Horace  Biuney,  delivered 
before  the  Councils  of  Philadelphia,  Sept.  24th,  1835. 
t  Bianey's  Eulogy  on  Chief-Justice  Marshall. 


JOHN  MARSHALL.  299 

birth  his  father  removed  his  family  to  the  then  frontier  settlements, 
thirty  miles  further  west,  and  located  in  the  midst  of  the  mountains  east 
of  the  Blue  Ridge,  at  a  place  called  the  "  Hollow,"  in  a  country  thinly 
peopled,  and  destitute  of  schools,  but  remarkable  foi  the  salubrity  of  its 
atmosphere  and  the  picturesque  beauty  of  its  mountain  scenery.  It  was 
a  place  admirable  for  the  formation  of  a  physical  constitution,  and  for 
the  development  of  its  powers  by  athletic  exercises  and  sports.  Here 
the  son  remained  until  his  fourteenth  year,  laying  the  foundation  of 
that  vigorous  health  which  attended  him  through  life,  and  deriving 
from  his  father  all  the  training  in  letters  which  he  received  up  to  that 
period, 

I  He  developed  even  in  his  younger  years,  a  remarkable  aptitude  for 
study.  At  an  age  when  most  children  are  engaged  in  those  simple 
elementary  tasks,  which  make  up  the  routine  of  schoolboy  life,  he  had 
already  acquired,  we  are  told,  a  taste  for  reading  poetry  and  history, 
and  was  fond  of  amusing  his  leisure  hours  by  a  study  of  the  old  Eng- 
lish authors.  Though  it  may  seem  surprising  in  our  day  that  the 
library  of  a  plain,  uneducated  planter,  in  one  of  the  back  settlements 
of  Virginia,  before  the  revolution,  should  have  been  found  to  contain 
Milton  and  Shakspeare,  Dryden  and  Pope,  and  the  principal  classic 
authors  of  the  language,  yet  such,  we  are  assured,  was  the  fact,  and 
the  mind  of  young  Marshall  was  thus  from  boyhood  enabled  to  famil- 
iarize itself  with  the  thoughts  of  those  great  masters  of  the  poetic  art. 
At  the  age  of  twelve  he  had  transcribed  the  whole  of  Pope's  Essay  011 
Man,  and  some  of  his  moral  essays,  and  had  committed  to  memory 
many  of  their  most  interesting  passages. 

Subsequent  to  this  period,  and  before  attaining  the  age  of  manhood, 
he  yielded  to  the  seductive  influence  of  the  muses,  so  far  as  to  suffer 
his  feet  to  stray  into  the  flowery  but  hazardous  paths  of  poetic  compo- 
sition. This  taste  for  general  literature,  and  especially  for  works  of 
the  imagination  and  poetry,  remained  with  Marshall  through  life. 
Judge  Story  dwells  upon  the  fact  with  peculiar  satisfaction.  He 
would  read,  he  says,  with  intense  interest  all  the  higher  literature  of 
modern  times,  especially  those  departments  which  had  been  the  favor- 
ite studies  of  his  youth,  and  would  kindle  with  enthusiasm  at  the 
names  of  the  great  novelists  and  poets  of  the  age.  These  elegant 
amusements,  Judge  Story  evidently  seems  to  regard,  with  Sir  James 


300  LIVES  OF  THE  CHIEF-JUSTICES. 

Mackintosh,  as  the  refuge  of  men  of  genius  from  "  the  vulgarity  and 
irritation  of  business."  The  union  of  such  a  taste  with  that  severe 
logic  and  closeness  of  thought  which  belong  to  the  judicial  character, 
he  remarks,  is  "  far  less  uncommon  in  the  highest  class  of  minds  than 
slight  observers  are  apt  to  suppose."  It  must  be  admitted  that  many 
illustrious  examples,  besides  Marshall's,  might  be  mentioned  to  verify 
the  remark.  Lord  Mansfield,  the  friend  of  the  poet  Pope,  was  distin- 
guished for  his  classic  attainments  and  literary  tastes.  When  he  first 
came  to  town,  according  to  Johnson,  "  he  drank  champagne  with  the 
wits  ;"  and  it  is  not  certain  but  that  he  always  preferred  the  society 
of  scholars  and  men  of  genius,  to  that  of  his  professional  brethren.* 
A  more  striking  example  still  is  the  case  of  Judge  Story  himself.  He 
wrote  and  published  a  poem  after  he  came  to  the  bar,  the  success  of 
which  was  probably  not  commensurate  with  its  merits,  or  at  least  with 
the  author's  expectations,  for  we  find  him  "some  years  afterwards  buy- 
ing up  and  destroying  all  the  copies  that  had  escaped  the  hands  of  the 
trunk-makers.  It  is  not  improbable  that,  if  "  the  Power  of  Solitude" 
had  passed  safely  and  successfully  through  the  hands  of  the  critics,  the 
Commentaries  on  the  Constitution  might  not  have  been  written.  Be 
this  as  it  may,  the  muses  still  continued  to  bring  its  author  "  delicious 
dreams,"  long  after  he  attained  professional  eminence  ;  and  he  could 
never,  not  even  after  he  had  taken  his  seat  by  the  side  of  Marshall  on 
the  bench,  bring  himself  to  confess  that — 

"  The  dreams  of  Pindus  and  the  Aonian  maid 
Invite  no  more."f 

*  "  Mr.  Pope,"  says  Warburton,  "  had  all  the  warmth  of  affection  for  this  great 
lawyer ;  and,  indeed,  no  man  ever  more  deserved  to  have  a  poet  for  his  friend." 
The  poet  handsomely  compliments  his  friend  in  the  well  known  lines  ending 

"  Whore  Murray  (long  enough  his  country's  pride) 
ShaU  be  no  more  than  TCLLY  or  than  Hyde."      • 

See  Life  of  Mansfield.    Roscoe's  British  Lawyers, 
t  Many  years  after  we  find  Story  writing  to  his  wife  as  follows  : 
"  When  I  have  nothing  else  to  do,  in  order  to  get  rid  of  my  own  sad  thoughts. 
I  fly  to  poetry.    I  have  written  some  lines  to  you  since  I  have  been  here,  which  I 
intended  to  send  to  you  in  this  letter.    But  the  Chief-Justice  requested  me  to  give 
him  a  copy,  and  I  shall  retain  the  original  until  I  can  make  one." 

The  lines  referred  to— which  are  somewhat  didactic— are  entitled  "Sketches  of 
Character,"  and  are  published  in  Story's  "  Life  and  Letters." 


JOHN  MARSHALL.  301 

Young  Marshall  was  sent  from  home  at  the  age  of  fourteen,  and 
placed  under  the  tuition  of  a  clergyman  residing  iu  Westmoreland, 
named  Campbell,  a  gentleman  of  great  respectability  and  learning. 
Here  he  remained  a  year,  having  for  one  of  his  fellow-stufleuts  James 
Monroe,  afterwards  President  of  the  United  States.  Returning  home, 
he  continued  his  studies  another  year  under  the  care  of  a  Scotch  gen- 
tleman named  Thompson,  just  settled  in  the  parish  as  pastor,  and  who 
resided  in  his  father's  family.  At  the  end  of  this  year,  we  are  told, 
he  had  just  commenced  reading  Horace  and  Livy.  These  two  years 
of  classical  instruction  are  all  which  the  Chief-Justice  ever  received. 
He  never  graduated  at  a  college,  though  by  his  own  industry  and  with 
the  aid  of  a  grammar  and  dictionary,  he  subsequently  managed  to 
acquire  a  respectable  knowledge  of  the  Latin  classics,  and  it  has  been 
well  remarked  that  his  attainments  in  learning  were  "  nursed  by  the 
solitary  vigils  of  his  own  genius." 

But  these  vigils  were  soon  broken  in  upon  by  the  stirring  events  of 
the  revolution.  Young  Marshall  was  entering  his  eighteenth  year 
when  the  contest  between  the  colonists  and  Great  Britain  commenced. 
It  found  him  engaged  in  studying  the  classics  and  in  reading  by  turns 
poetry  and  history,  and  the  Commentaries  of  Blackstone.  These  pur- 
suits, though  congenial  to  the  studious  habits  of  his  mind,  were  not 
suffered  to  engross  his  attention  to  the  exclusion  of  the  exciting  politi- 
cal topics  of  the  day.  On  the  contrary,  he  entered  into  the  contro- 
versy with  a  zeal  which  had  not  yet  become  tempered  by  the  sober 
lessons  of  wisdom  and  experience.  Nor  did  his  zeal  waste  itself  in 
noisy  and  boisterous  declamation,  or  in  the  mere  expression  of  specula- 
tive opinion  ;  for  he  was  among  the  first  to  set  the  example  of  prompt, 
energetic,  and  decisive  action.  The  thrilling  words  of  Patrick  Henry — 
"  We  must  fight !  An  appeal  to  arms  and  the  God  of  Hosts  is  all  that 
is  left  us .'" — had  scarcely  fallen  from  the  lips  of  the  great  orator,  ere 
we  find  John  Marshall,  laying  aside  his  Horace  and  Pope,  his  Lyttel- 
ton  and  Blackstone,  to  acquire  the  rudiments  of  military  exercise,  and 
actively  engaged  in  training  a  militia  company  in  the  neighborhood. 
His  first  appearance  after  the  intelligence  of  the  battle  of  Lexington 
had  been  received,  was  as  an  officer  of  a  militia  company  in  Fauquier 
County,  and  is  described  by  a  venerable  kinsman  who  was  himself  an 
eye-witness  of  the  occurrences  he  relates  ;  and  this  description  is  so 


302  LIVES  OF  THE  CHIEF-JUSTICES. 

graphic,  and  so  full  of  interest,  that  I  cannot  refrain  from  transcribing 
it  in  the  words  in  which  it  is  written  :* 

"  It  was  in  May,  1775.  He  was  then  a  youth  of  nineteen.  The 
muster-field  was  some  twenty  miles  distant  from  the  Court  house,  and 
in  a  section  of  the  country  peopled  by  tillers  of  the  earth.  Rumors 
of  the  occurrences  near  Boston  had  circulated  with  the  effect  of  alarm 
and  agitation,  but  without  the  means  of  ascertaining  the  truth,  for  not 
a  newspaper  was  printed  nearer  than  Williamsburgh,  nor  was  one 
taken  within  the  bounds  of  the  militia  company,  though  large.  The 
Captain  had  called  the  company  together  and  was  expected  to  attend, 
but  did  not.  John  Marshall  had  been  appointed  a  lieutenant  to  it. 
His  father  had  formerly  commanded  it.  Soon  after  Lieutenant  Mar- 
shall's appearance  on  the  ground,  those  who  knew  him  clustered  about 
him  to  greet  him,  others  from  curiosity,  and  to  hear  the  news. 

"  He  proceeded  to  inform  the  company  that  the  captain  would  not 
be  there,  and  that  he  had  been  appointed  lieutenant  instead  of  a  bet- 
ter ; — that  he  had  come  to  meet  them  as  fellow-soldiers  who  were 
likely  to  be  called  on  to  defend  their  country,  and  their  own  rights 
and  liberties,  invaded  by  the  British  ; — that  there  had  been  a  battle  at 
Lexington,  in  Massachusetts,  between  the  British  and  Americans,  in 
which  the  Americans  were  victorious,  but  that  more  -fighting  was  ex- 
pected ; — that  soldiers  were  called  for,  and  that  it  was  time  to  brighten 
their  fire-arms  and  learn  to  use  them  in  the  field  ; — and  that  if  they 
would  fall  into  a  single  line  he  would  show  them  the  new  manual  exer- 
cise, for  which  purpose  he  had  brought  his  gun — bringing  it  up  to  his 
shoulder.  The  sergeants  put  the  men  in  line,  and  their  fugleman  pre- 
sented himself  in  front  to  the  right." 

The  same  excellent  authority  goes  on  to  describe  the  personal  ap- 
pearance and  figure  of  Marshall,  and  the  simple  and  familiar  manner 
of  his  intercourse  with  the  men  whom  he  had  undertaken  to  instruct 
in  the  "  new  manual  exercise."  The  picture  is  striking  and  graphic  ; 
I  shall  hereafter  compare  it  with  another,  drawn  by  a  different  hand, 
of  the  same  John  Marshall  as  he  appeared,  not  as  lieutenant  of  militia, 
but  as  Chief-Justice  of  the  United  States  : 

"  He  was  about  six  feet  high,  straight  and  rather  slender,  of  dark 
complexion — showing  little,  if  any,  rosy  red,  yet  good  health,  the  out- 
*  From  the  Sketch  of  Marshall  by  Mr.  Bimiey. 


JOHN  MARSHALL.  393 

line  of  the  face  nearly  a  circle,  and  within  that  eyes  dark  to  blackness, 
strong  and  penetrating,  beaming  with  intelligence  and  good  nature  ; 
an  upright  forehead,  rather  low,  was  terminated  in  a  horizontal  line 
by  a  mass  of  raven  black  hair  of  unusual  thickness  and  strength.  The 
features  of  the  face  were  in  harmony  with  this  outline,  and  the  temples 
fully  developed.  The  result  of  this  combination  was  interesting  and 
very  agreeable.  The  body  and  limbs  indicated  agility  rather  than 
strength,  in  which,  however,  he  was  by  no  means  deficient.  He  wore 
a  purple  or  pale  blue  hunting-shirt,  and  trowsers  of  the  same  material 
fringed  with  white.  A  round  black  hat,  mounted  with  the  buck's  tail 
for  a  cockade,  crowned  the  figure  and  the  man. 

"  He  went  through  the  manual  exercise  by  word  and  motion,  delib- 
erately pronounced  and  performed  in  presence  of  the  company,  before 
he  required  the  men  to  imitate  him  ;  and  then  proceeded  to  exer- 
cise them  with  the  most  perfect  temper.  Xever  did  man  possess  a 
temper  more  happy,  or  if  otherwise,  more  subdued  or  better  disci- 
plined. 

"  After  a  few  lessons  the  company  were  dismissed,  and  informed 
that  if  they  wished  to  hear  more  about  the  war,  and  would  form  a 
circle  around  him,  he  would  tell  them  what  he  understood  about  it. 
The  circle  was  formed  and  he  addressed  the  company  for  something 
like  an  hour.  I  remember,  for  I  was  near  him,  that  he  spoke,  at  the 
close  of  his  speech,  of  the  minute  battalion  about  to  be  raised,  and 
said  he  was  going  into  it,  and  expected  to  be  joined  by  many  of  his 
hearers.  He  then  challenged  an  acquaintance  to  a  game  of  quoits, 
and  they  closed  the  day  with  foot  races,  and  other  athletic  exercises, 
at  which  there  was  no  betting.  He  had  walked  ten  miles  to  the  mus- 
ter field,  and  returned  the  same  distance  on  foot  to  his  father's  house, 
at  Oak  Hill,  where  he  arrived  a  little  after  sunset." 

Such  is  the  life-like  picture  which  a  cotemporary  and  kinsman  has 
left  of  the  Chief-Justice,  as  he  appeared  upon  the  threshhold  of  early 
manhood.  One  cannot  help  being  struck  with  its  truthfulness  and 
simplicity; — a  walk  of  ten  miles  from  Oak  Hill  in  a  blue  hunting-shirt 
and  buck  tail  cockade— a  frank,  friendly,  and  hearty  greeting  with  his 
comrades — a  drill  in  the  "  manual  exercise" — a  familiar  talk  about  the 
war — foot  races,  and  a  game  at  quoits  at  which  "  there  was  no  bet- 
ting," make  up  the  prominent  points  of  the  picture.  And  it  may  here 


304  LIVES  OF   THE  CHIEF-JUSTICES. 

be  added,  that  this  admirable  simplicity  of  manners — nay,  the  very 
tastes  and  habits  of  his  early  manhood,  remained  with  him  through 
life.  Thus  he  never  lost  his  fondness  for  those  field  sports  and  athletic 
exercises,  which  in  youth  laid  the  foundation  of  that  robust  health  which 
he  continued  to  enjoy  to  a  green  old  age  ;  nor  did  he  disdain  his  favor- 
ite game  of  quoits,  even  when  he  had  been  placed  at;  the  head  of  the 
Federal  Judiciary.  The  Chief-Justice  of  the  United  States  never 
ceased  to  be  John  Marshall. 

Soon  after  this  the  Virginia  Convention  resolved  to  raise  two  regi- 
ments for  the  public  defence.  Marshall  promptly  enrolled  himself  in 
the  "  minute  battalion,"  of  which  he  had  spoken,  and  in  the  summer 
of  1175  received  the  commission  of  lieutenant  in  one  of  the  companies 
comprising  it.  The  battalion  to  which  he  belonged  was  mustered  into 
service  on  the  first  of  September  of  the  same  year,  and  a  few  days 
after  was  ordered  to  march  to  the  lower  country,  to  defend  it  against 
a  small  predatory  force  under  Lord  Dunmore,  the  royal  Governor  of 
Virginia.  This  was  his  first  active  service,  and  the  particulars  of  the 
expedition,  from  his  own  observation,  are  given  by  him  in  his  life  of 
Washington.  Lord  Dunmore,  it  appears,  had  proclaimed  martial  law 
in  Virginia,  and  early  in  November  had  succeeded  in  collecting  such  a 
force  of  tories  and  negroes  as  to  give  him  entire  ascendancy  in  the 
southern  part  of  the  colony.  Hearing  of  these  transactions,  the  Vir- 
ginia Convention  ordered  Colonel  Woodford,  with  a  regiment  of  regu- 
lars and  about  two  hundred  minute  men,  to  advance  to  the  defence  of 
the  inhabitants.  Dunmore  intrenched  himself  on  the  Elizabeth  Kiver, 
near  the  Great  Bridge,  where  he  erected  a  fort  on  a  small  piece  of 
firm  ground,  surrounded  by  a  marsh,  which  was  accessible  only  by  a 
long  causeway.  Being  without  artillery,  the  Virginians  were  unable 
to  make  any  attempt  upon  these  works  ;  they  therefore  stationed 
themselves  at  a  village  within  cannon-shot  of  the  enemy,  and  erected  a 
breast-work  at  the  extremity  of  the  causeway.  A  few  days  passed 
without  any  action  on  either  side.  The  royal  Governor  at  length 
resolved  to  storm  the  works  of  the  provincials.  About  sunrise  on  the 
9th  of  December,  Captain  Fordyce,  at  the  head  of  about  sixty  British 
grenadiers,  advanced  along  the  causeway.  With  fixed  bayonets 
he  entered  the  breast-work.  The  alarm,  says-  Marshall,  was  imme- 
diately given  ;  and,  as  is  the  practice  with  raw  troops,  the  bravest 


JOHN  MARSHALL.  305 

rushed  to  the  works,  where,  regardless  of  order,  they  kept  up  a 
heavy  fire  on  the  front  of  the  British  column.  Captain  Fordyce, 
though  received  so  warmly  in  front,  and  taken  in  flank  by  a  party 
posted  on  a  small  eminence  on  his  right,  marched  up  with  great  intre- 
pidity, until  he  fell  dead  within  a  few  steps  of  the  breast-work.  The 
column  immediately  broke  and  retreated,  but  being  covered  by  the 
artillery  of  the  fort,  was  not  pursued.  v  In  this  first  battle  on  the  soil 
of  Virginia — the  Lexington  it  may  be  called  of  the  old  Common- 
wealth— the  future  Chief-Justice  took  an  active  part.  Even  at  this 
distant  day  the  imagination  can  paint  the  tall  form  of  the  young  pro- 
vincial lieutenant — not  as  it  appeared  more  than  half  a  century  later, 
in  its  dignified  repose  on  the  bench,  robed  in  the  judicial  gown  and 
slightly  bent  with  the  weight  of  years — but,  animated  with  the  enthu- 
siasm of  the  soldier,  erect,  vigorous,  and  athletic,  rising  above  those 
frail  breast-works,  and  urging  on  the  "  bravest  of  the  troops  "  to  de- 
fend their  position  to  the  last  against  the  assault  of  the  enemy.  The 
result  of  the  attack  was  disastrous  to  the  British.  Every  grenadier,  it 
is  said,  was  either  killed  or  wounded,  while  the  Americans  did  not  lose 
a  single  man.  Lord  Dunmore  found  himself  obliged  to  evacuate  the 
fort  the  following  night  and  take  refuge  on  board  his  vessels,  and  the 
provincials  proceeded  in  triumph  to  take  possession  of  Norfolk.  The 
city  was  soon  after  cannonaded  by  the  British  ships  and  set  on  fire  by 
a  strong  detachment  of  the  enemy,  landing  under  cover  of  the  cannon 
of  their  vessels,  and  was  afterwards  entirely  destroyed  by  order  of  the 
Committee  of  Safety,  and  the  place  evacuated. 

As  the  war  became  more  serious,  the  Virginia  Convention  deter- 
mined to  increase  the  number  of  their  regiments  from  two  to  eleven, 
which  were  afterwards  taken  into  the  continental  service.  In  July, 
1776,  Marshall  was  appointed  first  lieutenant  in  one  of  these  Conti- 
nental regiments.  His  father,  Colonel  Marshall,  commanded  the  third 
regiment,  which  was  with  the  army  under  Washington,  in  the  cam- 
paign of  1776,  as  I  have  already  mentioned,  and  performed  very  severe 
duty  during  the  retreat  through  New  Jersey.*  After  the  close  of  this 
disastrous  campaign,  when  the  American  army,  broken  and  dispirited, 
had  retired  into  winter-quarters  in  New  Jersey,  and  the  Aim-rinm 

*  President  Monroe  held  the  commission  of  Lieutenant  in  this  regiment,  and  was 
wounded  at  the  battle  of  Trenton. 
20 


306  LIVES   OF    THE  CHIEF-JUSTICES. 

cause,  notwithstanding  the  brilliant  successes  at  Trenton  and  Prince- 
ton, seemed  almost  hopeless,  the  regiment  to  which  Lieutenant  Mar 
shall  was  attached  was  ordered  to  the  North,  to  reinforce  the  Com- 
mander-in-chief in  New  Jersey.  Marshall  was  soon  after  promoted 
to  the  rank  of  captain,  and  was  at  the  head  of  his  company  when  the 
army,  the  encampment  at  Morristown  being  broken  up,  took  the  field 
for  the  campaign  of  1717.  Though  the  new  recruits  had  come  in, 
and  the  total  returns  of  the  army  at  this  time,  exclusive  of  cavalry 
and  artillery,  amounted  to  eight  thousand  three  hundred  and  seventy- 
eight  men,  yet  of  this  number  he  states  two  thousand  were  sick,  and 
the  effective  force  of  the  Americans,  rank  and  file,  was  something  less 
than  six  thousand  men.  Of  these  troops  more  than  one-half  were  un- 
acquainted with  the  first  rudiments  of  military  duty  and  had  never 
looked  an  enemy  in  the  face,  and  yet  with  this  insufficient  force  Wash- 
ington took  the  field  and  attempted  to  make  head  against  the  enemy. 
For  a  month  or  two  no  decisive  movement  was  made.  Washington 
entrenched  himself  at  Middlebrook,  between  the  British  General 
Howe  and  Philadelphia,  closely  watching  every  movement  of  the  ene- 
my, and  prepared  to  dispute  with  him  the  possession  of  the  American 
capital.  In  the  mean  time  fresh  recruits  joined  the  army,  its  discipline 
was  increased,  its  materiel  augmented,  and  in  a  short  time,  though  not 
nearly  equal  in  point  of  effective  strength  to  the  British,  it  was  in  a 
condition  to  manoeuvre,  with  some  prospect  of  success,  in  presence  oi 
the  enemy.  The  British  General  Howe,  abandoning  his  design  of 
forcing  his  way  to  Philadelphia  by  land,  about  the  middle  of  July  em- 
barked at  New  York  a  force  of  eighteen  thousand  men,  the  destina- 
tion of  which  was  not  at  first  known.  On  the  30th  July  the  British 
fleet  was  seen  off  the  capes  of  the  Delaware,  when  orders  were  imme- 
dia^ely  given  to  the  various  detachments  of  the  American  army  to 
assemble  in  the  neighborhood  of  Philadelphia.  General  Howe  hav- 
ing relinquished  his  design  of  attempting  to  carry  the  British  fleet  up 
the  Delaware  bay  and  river,  entered  the  Chesapeake,  which  owing  to 
unfavorable  winds  he  did  not  reach  till  the  16th  of  August ;  and  hav- 
ing sailed  up  that  bay  and  entered  Elk  river,  he  lauded  his  forces  at 
the  ferry  on  the  25th.  The  day  before  this  landing  the  American  army 
marched  through  Philadelphia  and  proceeded  towards  the  Brandy- 
wine.  Being  united  with  the  Pennsylvania  militia  under  General 


JOHN    MARSHALL.  307 

Armstrong,  their  numbers  amounted  to  fifteen  thousand  ;  but  the 
effective  force  was  far  below  this,  and  did  not  exceed,  according  to 
Marshall's  own  statement,  eleven  thousand  men.  Marshall's  company, 
it  appears,  was  attached  to  a  corps  of  light  infantry  formed  for  the  oc- 
casion, the  command  of  which  was  given  to  General  Maxwell.  This 
corps  was  advanced  to  Iron  Hill,  about  three  miles  in  front  of  White 
Clay  Creek.  The  opportunity  was  thus  given  to  Captain  Marshall  of 
engaging  in  the  first  skirmish  which  preceded  the  battle  of  Brandy- 
wine.  A  column  of  British,  led  by  Lord  Cornwallis,  moving  forward 
to  join  Knyphausen,  fell  in  with  and  attacked  Maxwell,  who  retreated 
over  White  Creek  with  the  loss  of  about  forty  men.  Meanwhile  the 
American  army  crossed  the  Brandywine  and  took  a  strong  position 
behind  that  river  at  Chadd's  Ford,  determined  at  this  place  to  dispute 
with  the  enemy  the  possession  of  Philadelphia.  General  Maxwell's 
corps,  to  which  Marshall  belonged,  was  advanced  in  front  and  placed 
advantageously  on  the  hills  south  of  the  river,  on  the  road  leading  over 
the  Ford.*  In  this  position,  on  the  llth  September,  about  daybreak, 
the  whole  British  army  was  seen  advancing  on  the  direct  road  leading 
over  Chadd's  Ford.  The  Americans  were  immediately  under  arms, 
and  skirmishing  commenced  between  the  advanced  parties,  though 
without  much  loss  on  either  side.  By  10  o'clock  Maxwell  was  obliged 
to  give  way  and  retreat  over  the  Brandywine,  below  the  Ford. 
Knyphausen  paraded  on  the  heights  lately  occupied  by  Maxwell,  and 
both  armies  prepared  for  battle.  The  American  troops  were  in  good 
spirits,  and  even  eager  for  action.  This  seems  evident  from  the  rela- 
tion given  by  Marshall,  in  his  Life  of  Washington,  of  a  skirmish  in 
which  he  himself  was  engaged.  The  British  were  divided  from  Max- 
well's corps  only  by  a  skirt  of  woods  and  the  river  ;  and  it  seems  that 
so  great  was  the  ardor  of  the  Americans,  that  small  parties  would 
leave  their  posts,  and  crossing  over  the  stream,  keep  up  a  scattering 
fire  against  the  enemy.  One  of  these  parties,  commanded  by  Cap 
tains  Waggoner  and  Porterfield,  engaged  the  British  flank  guard 
closely,  killed  a  captain  with  ten  or  fifteen  privates,  drove  them  out  of 
tlio  wood,  and  were  on  the  point  of  taking  a  field-piece.  The  sharp- 
ness of  the  skirmish  soon  drew  a  large  body  of  the  British  to  that 
qusirler,  and  the  Americans  were  again  driven  over  the  Brandywine. 
*  Marshall's  Life  of  Washington,  Vol.  I.  p.  155. 


308  LIVES  OF   THE  CHIEF-JUSTICES. 

The  characteristic  modesty  of  the  author  causes  him  to  omit  any  men- 
tion of  his  own  share  in  the  engagement,  and  he  merely  adds  in  a  note, 
that  he  was  "  an  eye-witness  of  this  skirmish."* 

The  battle  of  Brandy  wine  was  fought  on  the  10th  September,  1777. 
The  result  was  not  decisive,  though  the  Americans  were  defeated  and 
driven  from  their  position.  They  sustained  a  loss  of  nearly  a  thousand 
men  killed  and  wounded,  besides  some  prisoners.  The  British  loss  was 
about  half  that  number.  The  same  night  Washington  retreated  in 
good  order  to  Chester,  and  the  next  day  to  Philadelphia.  In  this 
hotly  contested  action  the  Virginia  troops  behaved  with  great  gal- 
lantry. The  elder  Marshall,  in  command  of  the  third  regiment,  greatly 
distinguished  himself.  He  was  stationed  in  a  wood  on  the  right,  and 
though  attacked  by  superior  numbers,  maintained  his  position  without 
losing  an  inch  of  ground,  until  his  ammunition  was  nearly  exhausted 
and  one-third  of  his  soldiers  killed  or  wounded.  Colonel  Marshall, 
whose  horse  had  received  two  balls,  then  retired  in  good  order  to 
resume  his  position  on  the  right  of  his  division,  but  found  it  had 
already  retreated.f 

That  the  victory  of  General  Howe,  if  it  may  be  called  such,  was 
not  decisive,  is  evident  from  the  fact  that  four  days  afterwards  Wash- 
ington was  on  the  Lancaster  road  in  pursuit  of  the  British  General,  for 
the  purpose  of  bringing  him  to  another  engagement.  On  the  16th  the 
two  armies  again  met,  and  after  a  brief  skirmish  were  separated  by  a 
heavy  storm.  Soon  after  Philadelphia  fell  into  the  hands  of  the 
enemy. 

The  battle  of  Germantown  followed — a  battle  skilfully  planned  and 
gallantly  contested,  but  like  the  battle  of  Brandywine,  indecisive  in  its 
results.  Captain  Marshall  was  in  this  engagement,  his  company  being 
attached  to  Woodford's  brigade,  which  was  stationed  in  the  left  wing 
immediately  opposite  the  British  right.  This  wing  coming  into  action, 
.  gallantly  attacked  the  British  light  infantry,  and  after  a  sharp  contest 
drove  it  from  the  ground.  While  rapidly  pursuing  the  flying  enemy, 
the  brigade  to  which  Marshall  belonged  was  arrested  by  a  destructive 
fire  of  musketry  from  a  large  stone  house  into  which  some  companies  of 
British  infantry  had  thrown  themselves.  Unable  to  return  this  fire  with 
effect,  the  brigade  was  drawn  off  to  the  left  by  its  commanding  offi- 

*  Marshall's  Life  of  Washington,  Vol.  I.,  p.  156.        t  Ibid.  Vol.  I.,  p.  158. 


JOHN   MARSHALL.  3Q9 

cers,  and  some  field-pieces  were  brought  up  to  play  upon  the  house, 
but  were  found  too  light  for  effective  service.  The  advance  of  the 
brigade  was  of  course  retarded,  and  the  line  broken,  although  one 
division  pressed  forward  with  such  eagerness  that  it  drove  back  part 
of  the  British  right  wing,  and  made  a  considerable  number  of  prison- 
ers.* ^This  untoward  accident,  in  conjunction  with  some  other  unfor- 
seen  and  unfortunate  occurrences,  snatched  the  victory  from  the  hands 
of  the  Americans  when  it  seemed  to  be  already  within  their  grasp. 
Washington  found  himself  compelled  to  draw  off  his  army,  which  he  did 
in  good  order.  The  loss  on  both  sides  was  about  the  same  as  in 
the  former  battle  at  the  Brandy  wine.  The  Americans  retreated  a  few 
miles  from  the  field,  but  meeting  with  a  reinforcement  large  enough  to 
repair  their  losses  they  again  advanced  towards  Philadelphia  and  en- 
camped on  Skippach  Creek,  and  soon  after  took  a  strong  position  at 
White  Marsh. 

It  was  while  the  Americans  lay  encamped  at  White  Marsh,  and 
just  before  the  army  went  into  winter-quarters  at  Valley  Forge,  that 
General  Howe  marched  out  of  Philadelphia  with  his  whole  army,  with 
the  design  of  forcing  Washington  from  his  position  and  driving  him 
beyond  the  mountains.  The  attack,  however,  was  never  made.  Some 
skirmishing  ensued  between  the  armies,  and  at  one  time  a  general  ac- 
tion seemed  inevitable  Upoa  this  occasion  Marshall  alludes  to  the 
courage  and  spirit  that  were  infused  into  the  troops  by  the  presence  of 
Washington,  who  rode  through  every  brigade,  delivering  his  orders 
relative  to  the  battle  in  person,  exhorting  the  soldiers  to  rely  princi- 
pally on  the  bayonet,  and  animating  them  to  a  vigorous  performance 
of  their  duty.  It  may  well  be  imagined  that  such  words  and  such  a 
presence,  were  to  the  timid  and  wavering,  powerful  incentives  to  duty. 
But  they  were  not  necessary  to  inspire  the  courage  or  animate  the 
zeal  of  the  young  captain  of  Virginia  continentals.  That  zeal  had 
been  already  proved  and  that  courage  tried.  No  officer  of  his  grade 
in  the  service  stood  higher.  He  was  deservedly  esteemed  and  beloved 
by  his  comrades.  His  acquaintance  with  the  officers  of  the  army  was 
extensive,  more  extensive,  perhaps,  because  he  was  called  upon  fre- 
quently to  act  as  Deputy  Judge  Advocate,  in  which  position  he  ac- 
quired deserved  reputation  and  influence.  The  feeling  of  affection 
*  1  Marshall's  Washington,  p.  169. 


310  LIVES  OF   THE  CHIEF-JUSTICES. 

which  the  officers  of  the  army  entertained  for  their  young  comrade, 
continued  unabated  to  the  last.  Years  afterwards  it  was  a  subject 
they  delighted  to  speak  of.  "  I  myself,"  says  Judge  Story,  "  have  often 
heard  him  spoken  of  by  some  of  these  veterans  in  terms  of  the  highest 
praise.  In  an  especial  manner,  the  Revolutionary  officers  of  the  Vir- 
ginia line  appeared  almost  to  idolize  him,  as  an  old  friend  and  compan- 
ion in  arms,  enjoying  their  fullest  confidence/'  His  acquaintance  ex- 
tended to  officers  of  superior  grades,  and  other  regiments  as  well  as 
his  own.  His  discharge  of  the  duties  of  Judge  Advocate  brought 
him  in  familiar  intercourse  with  Col.  Hamilton,  and  about  the  same 
time  he  made  the  personal  acquaintance  of  that  great  man  who  then 
commanded  in  chief  the  American  army,  and  for  whose  personal  char- 
acter, it  is  unnecessary  to  say,  he  never  ceased  to  entertain  the  most 
profound  reverence. 

Captain  Marshall  went  into  winter-quarters  with  the  army  at  Yalley 
Forge,  and  shared  the  privations  and  sufferings  of  the  troops  during 
the  whole  of  that  terrible  and  ever  memorable  season.  A  cotempo- 
rary  and  eye-witness  describes  him  as  he  appeared  at  this  time  among 
his  brother  officers  of  the  regiment  to  which  he  belonged  : — "  When 
the  writer  of  this  article  first  saw  him,"  he  remarks,  "  he  held  the 
commission  of  captain  in  that  regiment.  It  was  in  the  trying  severe 
winter  of  1777-8,  a  few  months  after  the  disastrous  battles  of  Bran- 
dywine  and  Germantown  had  tested  his  firmness,  hardihood  and  hero- 
ism. The  spot  where  we  acquired  our  earliest  information  of  him,  was 
the  famous  hutted  encampment  at  Valley  Forge,  about  thirty  miles  from 
Philadelphia.  By  his  appearance  then  we  supposed  him  about  twenty- 
two  or  twenty-three  years  of  age.  Even  so  early  in  life  we  recollect 
that  he  appeared  to  us  primus  inter  pares,  for  amidst  the  many  com- 
missioned officers  he  was  discriminated  for  superior  intelligence.  Our 
informant,  Col.  Ball,  of  another  regiment  in  the  same  line,  represented 
him  as  a  young  man,  not  only  brave,  but  signally  intelligent.  Indeed, 
all  those  who  intimately  knew  him,  affirmed  that  his  capacity  was  held 
in  such  estimation  by  many  of  his  brother  officers,  that  in  many  dis- 
putes of  a  certain  description,  he  was  constantly  chosen  arbiter  ;  and 
that  officers,  irritated  by  differences,  or  animated  by  debate,  often  sub- 
mitted the  contested  points  to  his  judgment,  which  being  given  in  writ- 


JOHN  MARSHALL.  3H 

ing,  and  accompanied,  as  it  commonly  was,  by  sound  reasons  in  support 
of  his  decision,  obtained  general  acquiescence."  * 

Marshall  remained  at  the  head  of  his  company  in  the  army, 
under  the  immediate  commaud  of  Washington,  during  the  two 
following  campaigns,  of  1178  and  1779.  He  was  present,  and  par- 
tieiptfted  in  the  celebrated  battle  of  Momnouth,  and  at  the  expira- 
tion of  that  campaign,  -went  with  the  army  into  winter-quarters.  The 
following  year  he  was  again  in  the  field,  and  formed  one  of  the  cover- 
ing party  detailed  to  sustain  General  Wayne  in  his  daring,  brilliant, 
and  successful  assault  upon  Stony  Point.  He  was  also  concerned  in 
the  enterprise  so  admirably  planned  and  successfully  executed  by  Ma- 
jor Lee  against  the  British  post  at  Powles  Hook.f 

When  the  army  went  into  winter-quarters  at  the  close  of  the  cam- 
paign of  1779,  there  being  a  superabundance  of  officers  belonging  to 
the  Virginia  line — the  term  of  enlistment  of  most  of  the  soldiers  hav- 
ing expired — Marshall  and  many  of  his  brother  officers  were  directed 
to  return  home  in  order  to  take  charge  of  such  men  as  the  State  Le- 
gislature might  raise  for  their  command.  In  this  interval  of  compara- 
tive repose  and  leisure,  the  first  that  he  had  known  since  the  breaking 
out  of  the  war,  he  applied  himself  with  renewed  ardor  to  a  severe 
course  qf  study.  Chancellor  Wythe  was  at  that  time  professor  of  law 
in  the  College  of  William  and  Mary,  and  Mr.  Madison,  afterwards 
Bishop  of  Virginia,  the  President  of  that  College.  Marshall  now 
found  an  opportunity  to  avail  himself  of  the  instructions  of  these  emi- 
nent men,  and  attended  a  course  of  law  lectures  by  the  former,  and  a 
course  of  lectures  on  natural  philosophy  by  the  latter.  He  left  the 
college  in  the  summer  vacation  of.  1780,  and  obtained  a  license  to 
practice  law. 

But  the  license  of  the  young  lawyer  availed  him  very  little  at  this 
period.  It  was  a  time  when  men  might  fully  realize  the  truth  of  the 
maxim,  inter  arma  silent  leges.  The  invasion  of  Virginia  soon  after  shut 
up  the  courts  of  lew,  and  they  were  not  opened  again  until  after  the  ca- 
pitulation of  Cornwallis.  In  the  mean  time  Marshall  returned  to  the 
army,  arid  remained  in  the  service  under  command  of  Baron  Steuben 

*  See  North  American  Review.  January,  1828.  p.  8. 
t  1  Marshall's  Life  of  Washington,  pp.  311,  316. 


312  LIVES   OF  THE  CHIEF-JUSTICES. 

until  after  the  termination  of  Arnold's  invasion.*  There  being  still  a 
redundance  of  officers  in  the  Virginia  line,  he  then  resigned  his  com- 
mission, and  thenceforth  applied  himself  with  unremitted  diligence  to 
the  study  of  his  future  profession. 

Immediately  on  the  close  of  hostilities  in  Virginia,  by  the  capture 
of  Cornwallis,  Mr.  Marshall  commenced  the  practice  of  the  law,  and 
soon  rose  to  distinction  at  the  bar.  His  placidity,  moderation,  and 
calmness,  says  one  of  his  eulogists,  irresistibly  won  the  esteem  of  men 
and  invited  them  to  intercourse  with  him  ; — his  benevolent  heart  and 
his  serene,  and  at  times  joyous  temper,  made  him  the  cherished  com- 
panion of  his  friends  ; — his  candor  and  integrity  attracted  the  confi- 
dence of  the  bar  ; — and  that  extraordinary  comprehension  and  grasp 
of  mind,  by  which  difficulties  were  seized  and  overcome  without  effort 
or  parade,  commanded  the  attention  and  respect  of  the  courts  of 
justice.  This  is  the  traditionary  account  of  the  first  professional  years 
of  John  Marshall.  He  accordingly  rose  rapidly  to  distinction,  and  to 
a  distinction  which  nobody  envied,  because  he  seemed  neither  to  wish 
it,  nor  to  be  conscious  of  it  himself,  f 

Marshall,  it  is  said,  attributed  his  early  advancement  and  lucrative 
practice,  not  so  much  to  his  own  merits,  as  to  his  extensive  acquaint- 
ance with  the  officers  of  the  army,  who,  by  the  termination  of  hos- 
tilities, had  returned  to  their  families,  aucj  were  scattered  over  the 
States.  Discerning  friends,  however,  have  not  failed  to  trace  it  to 
what  is  doubtless  its  true  source,  namely,  his  own  great  talents  and 
exertions. 

Mr.  Marshall's  first  appearance  in  political  life  was  in  the  Virginia 
Legislature,  of  which  he  was  elected  a  member  in  the  spring  of  1782. 
The  following  autumn  he  was  chosen  a  member  of  the  State  Execu- 
tive Council.  This  latter  position  he  resigned  in  the  spring  of  1784, 
in  order  to  devote  himself  more  exclusively  to  his  professional  duties. 
He  does  not  appear,  however,  to  have  found  a  seat  in  the  Legislature 
incompatible  with  these  duties,  as  we  find  him  elected  a  member  of 
that  body  from  his  native  County  of  Fauquier,  immediately  after 

*  On  the  10th  of  January,  1781,  he  was  with  the  army  near  Hood's,  when  the 
British  troops,  on  retiring  to  Portsmouth,  sustained,  in  an  ambuscade  by  the 
Americans,  the  only  loss  which  on  their  part  attended  that  incursion. 

t  Binney's  Eulogy  on  Marshall. 


JOHN  MARSHALL.  313 

resigning  his  seat  in  the  Council.  On  the  3d  of  January,  1183,  he 
married  Miss  Mary  Willis  Ambler,  daughter  of  the  then  State  Trea- 
surer, to  whom  he  had  become  attached  before  leaving  the  army. 
This  was  one  of  three  events  of  his  life  which  alone  he  deemed  worthy 
of  commemoration  in  the  simple  inscription,  which  two  days  before  his 
death;  his  own  hand  wrote  to  be  placed  on  his  tomb — his  birth,  his 
marriage,  and  his  death  !  With  this  lady  he  lived  nearly  fifty  years, 
in  the  most  devoted^  conjugal  affection,  and  her  death,  says  Judge 
Story,  cast  a  gloom  over  his  thoughts  from  which  he  never  recovered. 

About  the  same  time  Mr.  Marshall  took  up  his  permanent  residence 
in  the  city  of  Richmond,  and  was  soon  extensively  engaged  in  the 
practice  of  the  law.  He  also  engaged  with  interest  and  ardor  in  the 
political  questions  of  the  day,  particularly  those  in  which  his  own 
State  was  more  immediately  interested.  He  was  continued,  by  re- 
peated elections,  a  member  of  the  State  Legislature  during  most  of  this 
period,  up  to  the  final  adoption  of  the  Constitution.  Here  he  came  in 
contact  with  such  men  as  Henry,  Lee,  Tyler,  Tazewell  and  Madison; 
the  latter  gentleman  warmly  sustained  him  in  his  enlightened  advocacy 
of  a  union  between  the  states  and  the  establishment  of  an  efficient 
federal  government.  Though  at  a  subsequent  period  Marshall  and 
Madison  widely  differed  in  their  political  views  and  constitutional  con- 
structions, yet  the  respect  and  friendship  with  which  they  mutually 
regarded  each  other,  were  continued  to  the  close  of  their  lives. 
"  Nothing,  indeed,  could  be  more  touchipg  to  an  ingenuous  mind," 
remarks  Judge  Story,  "  than  to  hear  from  their  lips,  in  their  latter 
years,  expressions  of  mutual  respect  and  confidence  ;  or  to  witness 
their  earnest  testimony  to  the  talents,  the  virtues,  and  the  services  of 
each  other." 

The  questions  occupying  the  attention  of  the  Virginia  Legislature 
during  this  period,  were  of  the  gravest  character.  Besides  those 
which  may  be  considered  as  more  especially  belonging  to  the  internal 
affairs  of  the  State,  such  as  the  administration  of  justice,  the  collection 
of  taxes,  the  regulation  of  the  currency,  and  the  like,  other  questions  re- 
lative to  the  external  and  federal  relations  of  the  State,  were  constantly 
brought  up  for  discussion.  And  rising  above  and  extending  far  be- 
yond all  in  its  magnitude  and  greatness,  at  the  very  threshold  of  these 
discussions,  stood  the  formidable  question,  whether  the  union  of  the 


314  LIVES  OF  THE  CHIEF-JUSTICES. 

States  should  or  should  not  be  preserved  ;  and  if  preserved,  under 
what  form  of  confederation  or  government.  Deeply  interesting  to  the 
people  of  Virginia  as  was  the  discussion  of  all  these  questions,  it  is 
not  necessary  for  the  purposes  of  this  sketch  to  inquire  what  par- 
ticular part  was  sustained  in  them  by  Mr.  Marshall  ;  and  I  shall 
merely  allude  to  the  question  last  mentioned,  for  the  purpose  of 
indicating  generally  the  nature  of  his  views  and  opinions  at  this 
time. 

The  insufficiency  of  the  old  articles  of  confederation  was  seen  at 
an  early  period  in  Virginia,  as  elsewhere,  and  discerning  men  were  not 
slow  to  perceive  that  the  cumbrous  and  unwieldy  mechanism  must  soon 
fall  to  pieces.  This  being  the  case,  the  question  occurred  whether  any 
further  union  should  be  attempted,  and  it  is  unnecessary  to  say  that  it 
was  discussed  in  Virginia,  as  in  other  States,  with  no  little  warmth, 
and  that  it  had  its  opponents  as  well  as  its  advocates.  Marshall 
was  one  of  those  who,  in  the  Legislature,  warmly  seconded  Madison, 
and  the  other  friends  of  an  effective  federal  union.  His  course  was 
precisely  such  as  might  have  been  anticipated.  And  though  taken 
under  the  enthusiastic  impulses  of  youth,  and,  as  he  himself  thought, 
governed  in  a  great  degree  by  circumstances,  it  was  one  which  his 
mature  and  deliberate  judgment  in  after  years  fully  approved.  Long 
afterwards,  in  a  letter  to  a  friend,  he  frankly  intimates  the  reasons 
which  he  supposes  influenced  his  early  opinions  on  this  subject : — 

"  When  I  recollect  the  wild  and  enthusiastic  notions  with  which  my 
political  opinions  of  that  day  were  tinctured,  I  am  disposed  to  ascribe 
my  devotion  to  the  Union,  and  to  a  government  competent  to  its  pre- 
servation, at  least  as  much  to  casual  circumstances  as  to  judgment.  I 
had  grown  up  at!  a  time  when  the  love  of  the  Union,  and  the  resist- 
ance to  the  claims  of  Great  Britain,  were  the  inseparable  inmates  of 
the  same  bosom ;  when  patriotism  and  a  strong  fellow-feeling  with  our 
Buffering  fellow-citizens  of  Boston  were  identical ;  when  the  maxim 
'  United  we  stand,  divided  we  fall,'  was  the  maxim  of  every  orthodox 
American.  And  I  had  imbibed  these  sentiments-  so  thoroughly  that 
they  constituted  a  part  of  my  being.  ]  carried  them  with  me  into  ihe 
army,  where  I  found  myself  associated  with  brave  men,  from  different 
states,  who  were  risking  life  and  everything  valuable,  in  a  common 
cause,  believed  by  all  to  be  most  precious,  and  where  I  was  confirmed 


JOHN  MARSHALL.  315 

in  the  habit  of  considering  America  as  my  country,  and  Congress  as 
my  government." 

And  in  the  same  letter  he  adds  :  "  My  immediate  entrance  into 
the  State  Legislature  opened  to  my  view  the  causes  which  had  been 
chiefly  instrumental  in  augmenting  those  sufferings  (of  the  army)  ; 
and  the  general  tendency  of  State  politics  convinced  me  that  no  safe 
and  permanent  remedy  could  be  found  but  in  a  more  efficient  and  bet- 
ter organized  general  government." 

With  these  views  Marshall  firmly  arrayed  himself  in  the  Legisla- 
ture by  the  side  of  those  whose  efforts  tended  to  secure  the  great 
object  in  view,  a  permanent  and  efficient  union  of  the  States  under  a 

'  federal  government.  He  was  not  himself  a  member  of  the  Conven- 
/tion  which  framed  the. Constitution  ;  but  the  same  year  in  which  that 
/body  met,  he  was  again  elected  to  the  Virginia  house  of  delegates, 

I  from  the  county  of  Henrico,  there  to  sustain  and  defend,  so  far  as  was 
requisite,  and  until  the  time  arrived  for  more  efficient  action,  the 
policy  and  measures  of  the  Convention. 
f      When  the  Constitution  was  submitted  to  the  States  for  their  deci- 

/   sion,  Marshall,  who  warmly  advocated  its  adoption,  became  a  candi- 

/  date  for  election  to  the  Virginia  Convention.  The  majority  of  the 
voters  in  the  county  where  he  resided  were  opposed  to  the  Constitu- 
tion. He  was  assured  that  all  opposition  would  be  withdrawn  if  he 
would  pledge  himself  to  vote  against  its  adoption,  otherwise  he  would 
be  strenuously  resisted.  Marshall,  of  course,  refused  the  pledge,  and 
determined  to  encounter  the  opposition.  But  no  opposition  could 
withstand  his  personal  popularity  and  the  high  estimate  in  which  his 
character  and  virtues  were  held  in  the  community  ;  and  though  the 
question  at  issue  naturally  excited  the  utmost  warmth  of  feeling,  yet, 
as  he  remarks  himself,  "  parties  had  not  yet  become  so  bitter  as  to  ex- 
tinguish the  private  affections."  The  result  of  the  canvass  was  his 
election  by  a  triumphant  majority. 

The  Virginia  Convention  assembled  at  Richmond  on  the  2d  of  June, 
1188.  EDWARD  PENDLETON  was  chosen  its  president.  The  debates  of 
this  body  have  been  preserved,  and  are  published.*  Though  said  to 
be  loose  and  imperfect,  and  by  no  means  to  do  full  justice  to  the  elo- 

*  They  comprise  the  entire  third  volume  of  Elliott's  Debates  on  the  Fedora) 

Constitution. 


316  LIVES  OF   THE  CHIKF-JUSTICES. 

qucnce  and  ability  of  the  respective  speakers,  yet  they  are  still,  even 
in  our  day,  worthy  of  careful  perusal  by  the  student  of  our  constitu- 
tional history.  The  first  orators  and  the  ablest  lawyers  in  Virginia — 
the  greatest  names  in  her  civil  and  political  annals — are  found  among 
the  members  of  this  body.  Mr.  NICHOLAS  led  off  in  these  discussions 
in  favor  of  the  Constitution.  PATRICK  HENRY  followed,  in  warm  and 
earnest  opposition.  Gov.  "RANDOLPH  succeeded  MR.  HENRY,  and  though 
he  had  refused  to  sign  the  instrument  in  the  Federal  Convention,  he  now 
brought  to  its  support  the  timely  aid  of  his  vigorous  and  powerful 
eloquence  ;*  and  GEORGE  MASON  followed  in  a  strong  and  searching 
argument  on  the  other  side.  The  debate  thus  opened  was  continued 
from  day  to  day,  with  increased  animation  and  interest,  till  the  close  of 
the  Convention.  By  the  side. of  Nicholas  and  Randolph  were  ranged 
Madison,  Pendleton,  Wythe,  Innis,  Blair,  Bushrod  Washington,  and 
Marshall ;  and  with  Henry  and  Mason  on  the  other  side,  stood 
Bland,  Grayson,  Tyler,  and  Monroe. 

It  appears  from  the  debates  that  Mr.  Marshall  delivered  three 
speeches  during  the  Convention.  The  first  of  these  was  in  reply  to 
Patrick  Henry,  in  which  he  enters  upon  a  full  and  somewhat  general 
discussion  of  the  proposed  plan  of  government,  and  very  ably  vindi- 
cates it  against  the  various  objections  raised  and  urged  with  so  much 
force  and  eloquence  by  that  celebrated  orator.  The  second  is  more 
brief,  and  relates  exclusively  to  the  organization  of  the  militia  ;  and 
the  third  is  a  clear,  lucid,  and  powerful  argument  in  favor  of  the  judi- 
ciary clause  of  the  Constitution,  and  in  reply  to  Mr.  George  Mason. 
I  cannot  refrain  from  transcribing  a  single  passage  in  this  admirable 
speech,  in  reference  to  that  celebrated  constitutional  question,  which 

*  Mr.  Randolph's  last  words  in  the  Convention  are  reported  as  follows : — "The 
suffrage  which  I  shall  give  in  favor  of  the  Constitution  will  be  ascribed  by  malice 
to  motives  unknown  to  my  breast  But  although  for  every  other  act  of  my  life  I 
shall  seek  refuge  in  the  mercy  of  God — for  this  I  request  his  justice  only.  Lest, 
however,  some  future  annalist  should,  in  the  spirit  of  party  vengeance,  deign  to 
mention  my  name,  let  him  recite  these  truths — that  I  went  to  the  Federal  Conven- 
tion with  the  strongest  affection  for  the  Union ;  that  I  acted  there  in  full  confor- 
mity with  that  affection ;  that  I  refused  to  subscribe,  because  I  had,  as  I  still 
have,  objections  to  the  Constitution,  and  wished  a  free  inquiry  into  its  merits ; 
and  that  the  accession  of  eight  States  reduced  our  deliberations  to  the  single  ques- 
tion of  Union  or  no  Union."— 3  Elliott's  Debates,  587. 


JOHN    MARSHALL.  3^7 

was  discussed  in  Chief-Justice  Jay's  time,  in  the  case  of  Chisholm  vs. 
The  State  of  Georgia,  namely,  whether  a  State  was  liable  to  answer 
in  the  Federal  courts  at  the  suit  of  a  citizen  of  another  State.  The 
wide  difference  between  the  views  of  Marshall  and  those  subsequently 
advanced  by  Jay  and  his  associates,  including  Justice  Blair,  who  was 
himself  a  member  of  the  Convention,  is  worthy  of  notice  : — 

"With  respect  to  disputes  between  a  State  and  the  citizens  of 
another  State,  its  jurisdiction  has  been  decried  with  usual  vehemence. 
I  hope  that  no  gentleman  will  think  that  a  State  will  be  called  at  the 
bar  of  the.  Federal  court.  Is  there  no  such  case  at  present  ?  Are 
there  not  many  cases  in  which  the  Legislature  of  Virginia  is  a  party, 
and  yet  the  State  is  not  sued  ?  It  is  not  rational  to  suppose  that  the 
sovereign  power  shall  be  dragged  before  a  court.  The  intent  is  to  enable 
states  to  recover  claims  of  individuals  residing  in  other  states.  I  con- 
tend this  construction  is  warranted  by  the  words.  But  say  they,  there 
will  be  a  partiality  in  it,  if  a  State  cannot  be  defendant — if  an  indivi- 
dual cannot  proceed  to  obtain  judgment  against  a  State,  though  he 
may  be  sued  by  a  State.  It  is  necessary  to  be  so,  and  cannot  be 
avoided.  I  see  a  difficulty  in  making  a  State  defendant  which  does  not 
prevent  its  being  plaintiff.  If  this  be  only  what  cannot  be  avoided, 
why  object  to  the  system  on  that  account  ?  If  an  individual  has  a 
just  claim  against  any  particular  State,  is  it  to  be  presumed  that  on 
application  to  its  Legislature  he  will  not  obtain  satisfaction  ?  But 
how  could  a  State  recover  any  claim  from  a  citizen  of  another-  State 
without  the  establishment  of  these  tribunals  ?" 

The  session  of  the  Convention  lasted  twenty-five  days.  From  its 
commencement  to  its  close  it  was  attended  by  crowds  of  citizens  of  all 
ages  and  conditions,  attracted  both  by  the  intense  interest  every- 
where felt  in  the  subject  under  discussion^  aniLby.the  splendid  displays 
of  eloquence  which  it  elicited.  Wirt's^glowing  ancTanimated  descrip- 
tion of  this  distinguished  body — the  most  illustrious  perhaps  and 
ablest  that  ever  assembled  in  Virginia — is  no  doubt  familiar  to  the 
reader.  Still  I  am  tempted  to  embellish  my  own  imperfect  sketch 
with  a  touch  of  the  warm  and  rich  coloring  which  never  failed  to  fol- 
low the  pencil  which  that  master  hand  guided  over  the  canvass. 

"  Day  after  day,  from  morning  till  night,  the  galleries  of  the  house 
were  continually  filled  with  an  anxious  crowd,  who  forgot  the  incon- 


318  LIVES  OF  THE  CHIEF-JUSTICES. 

venience  of  their  situation  in  the  excess  of  their  enjoyment ;  and,  far 
from  giving  any  interruption  to  the  course  of  the  debate,  increased  its 
interest  and  solemnity  by  their  silence  and  attention.  No  bustle,  no 
motion,  no  sound,  was  heard,  among  them,  save  only  a  slight  move- 
ment, when  some  new  speaker  arose,  whom  they  were  all  eager  to  see 
as  well  as  to  hear  ;  or  when  some  master-stroke  of  eloquence  shot 
thrilling  along  their  nerves,  and  extorted  an  involuntary  and  inarticu- 
late murmur.  Day  after  day  was  this  banquet  of  the  mind  and  of 
the  heart  spread  before  them,  with  a  delicacy  and  variety  which  could 
never  cloy.  There  every  taste  might  find  its  peculiar  gratification — 
the  man  of  wit — the  man  of  feeling — the  critic — the  philosopher — the 
historian — the  metaphysician — the  lover  of  logic — the  admirer  of 
rhetoric — any  man  who  had  an  eye  for  the  beauty  of  action  or  an  ear 
for  the  harmony  of  sound,  or  a  soul  for  the  charms  of  poetic  fancy — 
in  short  every  one,  who  could  see,  or  hear,  or  feel,  or  understand, 
might  find  in  the  wanton  profusion  and  prodigality  of  that  Attic  feast, 
some  delicacy  adapted  to  his  peculiar  taste.  Every  mode  of  attack 
and  defence  of  which  the  human  mind  is  capable,  in  decorous  debate 
— every  species  of  weapon  and  armor,  offensive  and  defensive,  that 
could  be  used  with  advantage,  from  the  Roman  javelin  to  the  Par- 
thian arrow,  from  the  cloud  of  ^Eneas  to  the  shield  of  Achilles — all 
that  could  be  accomplished  by  human  strength,  and  almost  more  than 
human  activity,  was  seen  exhibited  on  that  celebrated  floor."* 

At  the  close  of  the  debates  in  the  Virginia  Convention,  it  was 
known  that  eight  States  had  already  ratified  the  Constitution.  The 
accession  of  Virginia  was  all  that  was  now  required  in  order  to  com- 
plete the  confederacy  and  put  the  new  government  into  operation. 
Yet,  notwithstanding  the  great  ability  and  influence  of  the  friends  of 
the  Constitution  in  the  Convention,  it  had  a  narrow  escape  on  its  iinal 
passage.  A  resolution,  that  a  bill  of  rights,  together  with  amendments 
to  its  most  objectionable  parts  should  be  submitted,  previous  to  its 
ratification,  to  a  convention  of  the  States,  was  negatived  by  a  bare 
majority  of  eight  votes  ;  and,  on  the  Qnal  question  of  ratification,  the 
vote  stood  89  to  79.  Mr.  Marshall  was  appointed  on  the  committee 
to  prepare  a  form  of  ratification.  He  was  also  a  member  of  the  com- 
mittee, of  which  Chancellor  Wythe  was  chairman,  appointed  to  pre- 
*  Life  of  Patrick  Henry,  p.  311. 


JOHN  MARSHALL.  3^9 

pare  and  report  a  bill  of  rights  and  such  amendments  as  were  deemed 
necessary  to  be  recommended  to  the  consideration  of  Congress.  The 
report  was  made  on  the  27th  July,  the  bill  of  rights  and  the  amend- 
ments proposed  by  the  committee  adopted,  and  the  Convention  there- 
upon adjourned  sine  die.  On  that  day  the  Constitution  received  its 
vitality  and  the  American  Republic  the  charter  of  its  liberties. 

Mr.  Marshall  continued  a  member  of  the  State  Legislature  at  inter- 
vals for  some  years  after  the  adoption  of  the  Federal  Constitution. 
During  this  period  nearly  all  those  important  measures  consequent 
upon  the  organization  of  the  government  which  I  have  alluded  to  in 
another  part  of  this  volume,*  were  discussed(in  the  Virginia  Legisla- 
ture with  great  warmth  and  freedom.  It  is  unnecessary  to  say  that 
Marshall  mingled  prominently  in  these  debates,  and  adopting  a  large 
and  liberal  view  of  public  policy,  cordially  and  efficiently  co-operated, 
so  far  as  his  position  enabled  him  to  do,  in  sustaining,  the  national 
government  in  what  he  conceived  to  be  its  true  spirit.  It  was  here, 
perhaps,  that  he  first  applied  himself  to  a  close  and  critical  study  of 
the  constitutional  compact,  and  his  mind  became  settled  in  those  con- 
victions and  views  of  constitutional  construction  which  his  subsequent 
legal  opinions  so  clearly  elucidated.  The  opposition  to  the  adoption 
of  the  Constitution  in  Virginia,  as  elsewhere,  had  been  mainly  upon 
the  ground  of  its  strong  tendency  to  consolidation,  and  to  destroy  the 
separate  existence  and  independence  of  the  States.  It  therefore  mani- 
fested itself  at  an  early  period  in  a  jealous  vigilance  against  any  con- 
struction not  warranted  by  the  strict  terms  of  the  instrument  itself, 
and  insisted  upon  the  closest  abridgement  of  its  powers.  On  the 
other  hand,  most  of  those,  who,  like  Marshall,  had  been  warm  and 
ardent  friends  of  an  efficient  federal  union  from  the  beginning,  were  in 
favor  of  giving  full  effect  to  all  the  necessary  measures  of  government 
by  a  more  liberal  construction.  Madison,  it  is  well  known,  adopted 
the  former  of  these  opinions  ;  and  Marshall,  in  a  few  years,  found 
himself  in  an  antagonistic  position  to  this  gentleman,  with  whom  IK-  had 
stood  side  by  side  fighting  the  battle  of  the  Constitution  on  the  floor 
of  the  Virginia  Convention.  In  common  with  the  great  mass  of  the 
Federal  party,  he  did  not  yield  his  assent  to  Madison's  famous  resolu- 
tion of  1798  ;  much  less  to  those  said  to  have  been  drafted  by  Jeffer- 
*  Sketch  of  Ellsworth,  ante,  pages  240-243. 


320  LIVES  OF  THE  CHIEF-JUSTICES. 

son  and  known  by  the  name  of  the  Kentucky  resolutions.  And  these 
opinions  he  entertained  even  at  the  early  period  of  which  I  am  now 
speaking.  Thus,  when  the  funding  system  of  Hamilton  was  attacked 
with  great  acrimony-  in  the  Virginia  Legislature,  and  the  constitution- 
ality of  that  part  of  it  assuming  the  State  debts  denied,  Marshall 
came  to  its  support,  and  with  his  accustomed  clearness,  vigor  and 
force  undertook  to  demonstrate  its  constitutionality.  In  the  same 
spirit  he  examined  other  constitutional  questions  and  measures  of  pub- 
lic policy,  and,  his  ideas  once  matured  and  his  convictions  settled,  he 
rarely  failed  to  silence,  if  he  did  not  convince  his  adversaries.  In 
powers  of  clear,  calm,  logical  discussion,  he  stood  unrivalled,  and 
was  confessedly  one  of  the  leaders  of  the  Virginia  Legislature. 

But  it  was  to  the  labors  of  his  profession  during  these  years  that  he 
devoted  the  best  portion  of  his  intellect  and  his  energies.  Nothing 
was  suffered  to  divert  his  attention,  or  turn  him  from  the  steady 
pursuit  of  this  object.  Indeed  in  1792,  he  retired  from  the  Legis- 
lature altogether,  for  the  purpose  of  devoting  himself  more  exclusively 
to  the  bar.  His  professional  reputation  at  this  period  was  very  high. 
He  found  himself  engaged  in  all  the  leading  causes  in  the  State  and 
national  tribunals  ;  and  by  a  course  of  profound  study  and  culture,  of 
severe  mental  training, -and  of  successful  practice  at  the  bar,  he  gra- 
dually matured  and  developed  those  great  powers  which  shed  lustre 
around  that  higher  and  more  honorable  career  on  the  bench  upon 
whfch  he  was  about  to  enter. 

Some  idea  of  the  extent  of  Marshall's  practice,  as  well  as  of  his 
eminent  ability  in  forensic  argument,  may  be  obtained  by  glancing  at 
the  Virginia  reports  of  this  period,  especially  the  two  volumes  by 
Washington  of  cases  adjudged  in  the  Courts  of  Appeals.  The  latter 
of  these  volumes  in  particular,  embracing  a  period  of  three  years,  from 
1794  to  1797,  is  replete  with  the  learning,  and  may  well  be  considered 
a  proud  monument  to  the  professional  fame  of  the  future  Chief-Jus- 
tice. His  name  is  found  as  counsel,  on  one  side  or  the  other,  in  the 
great  majority  of  the  cases  reported — indeed  it  may  be  added  in 
every  case  of  any  degree  of  importance.  However  high  might  be 
the  reputation  of  a  counsel  engaged  in  a  cause  of  great  difficulty, 
or  of  great  magnitude,  he  considered  it  no  disparagement  to  call  to 
his  aid  the  ponderous  strength,  and  avail  himself  of  the  close  logic  of 


JOHN  MAESHALL.  321 

Marshall.  And  this,  it  must  be  remembered,  was  at  a  day,  when  to 
occupy  a  front  rank  amid  such  an  array  as  the  bar  of  Virginia  then 
presented,  was  no  empty  honor.  Patrick  Henry  indeed  was  about 
passing  away  ;  but  that  bar  could  boast  of  such  bright  ornaments  as 
Campbell,  and  Lee,  and  Ronald,  and  Wickham,  and  Warden,  and 
Baker,  and  Randolph,  and  Washington — a  bar  possessing  every  ele- 
ment of  forensic  greatness — learning,  eloquence,  intellect,  culture — all 
that  can  adorn  and  dignify  the  professional  mind.  And  above  them 
all  Marshall  towered  a  Colossus  in  intellectual  strength — or,  perhaps, 
if  the  figure  be  not  too  bold,  a  majestic  pillar  in  this  temple  of  Themis, 
standing  out  like  the  massive  Doric  shaft  amid  a  clustre  of  luxuriant 
Corinthian  columns, 

"  Nobly  plain  and  unadorned," 

the  emblem  of  simplicity  combined  with  majestic  strength,  and  the 
type  of  a  primeval  age. 

The  professional  reader  will  see,  by  these  reports,  what  was  tlje 
character  of  the  more  important  cases  which  enlisted  the  abilities  of 
Marshall  while  an  advocate  at  the  bar.  He  will  see,  too,  how  wide 
and  deep  the  common  law  had  struck  its  roots  into  the  soil  of  Vir- 
ginia, nor  will  he  fail  to  admire  the  research,  the  learning,  the  inge- 
nuity, and  the  professional  acumen  which  distinguished  not  only  the 
arguments  at  bar,  but  the  judgments  pronounced  from  the  bench  in 
the  highest  tribunal  of  the  State.  The  most  abstruse  and  perplexing 
questions  of  the  law  of  real  property  were  involved  in  some  of  these 
cases,  and  in  their  discussion  the  whole  field  of  common-law  learning 
was  explored,  and  the  subtlest  distinctions,  the  most  ingenious  analo- 
gies, and  the  most  recondite  principles  were  often  brought  to  bear 
upon  the  argument.  Nor  were  the  Virginia  lawyers,  and  even 
Marshall  himself,  unskilled  in  the  use  of  those  keen  and  glittering 
weapons  of  law  logic,  which,  like  the  sword  of  Saladin,  are  formidable 
mainly  from  the  dexterity  with  which  they  are  wielded.  But  these 
were  never  the  favorite  weapons  of  Marshall.  He  preferred  the  pon- 
derous battle-axe,  to  the  Turkish  scimitar ;  he  could  apply  with  ad- 
mirable felicity,  but  he  never  delighted  in  discussing,  a  mere  technical 
principle  ;  if  he  did,  it  was  with  him  technical  in  the  best  and  highest 
sense  of  the  term — a  something  which  pertained  to  the  ars  juridic 
not  a  mere  verbal  distinction  or  quibble  of  logic. 
21 


322  LIVES  OF  THE  CHIEF-JUSTICES. 

Questions  like  these,  however,  were  not  of  frequent  occurrence. 
Indeed,  their  discussion  would  seem  to  have  been  out  of  place  in  that 
august  tribunal,  over  which  the  venerable  Edmund  Pendleton  presided. 
Accordingly  we  find  that  by  far  the  greater  number  of  these  cases 
reported  by  Judge  Washington,  involved  high  and  important,  aud 
some  of  them,  the  most  profound  legal  principles.  Were  I  to  select 
from  them  one,  the  argument  of  which  might  be  taken  as  a  fair  speci- 
men of  the  whole,  and  as  exhibiting  also  in  a  high  degree  the  accurate 
learning,  the  close  logic,  and  splendid  abilities  of  Marshall,  it  would 
be  the  case  of  Roy  vs.  Garnett,*  argued  at  the  autumn  term  of  the 
Court  of  Appeals  in  1194.  It  was  a  case  turning  upon  some  of  those 
abstruse  principles  on  which  the  law  governing  real  property  is  built, 
the  very  enunciation  of  which  would  be  incomprehensible  to  the  non- 
professional  reader.  On  account  of  the  great  difficulty  of  the  ques- 
tions involved,  as  well  as  of  the  importance  of  the  matter  in  contro- 
versy, it  had  been  continued  from  a  preceding  term  in  order  to  be 
argued  before,  and  decided  by,  a  full  bench.  On  either  side  a  formida- 
ble array  of  counsel  appeared.  Campbell  opened  the  discussion  with 
more  than  his  usual  energy  and  impressive  power.  Warden,  Bushrod 
Washington,  and  Wickham  followed  in  opposition.  It  was  reserved 
for  Marshall  to  make  the  reply  which  was  to  close  the  argument.  The 
analysis  of  that  reply  is  preserved  in  the  report.  It  may  be  referred 
to  as  an  admirable  specimen  of  the  style  and  manner  of  Marshall's 
reasoning — clear  in  its  statements,  simple  in  its  processes,  strong  and 
irresistible  in  its  conclusions.  Thoroughly  versed  in  the  principles  of 
the  law  of  real  property,  and  fond  of  tracing  those  principles  to  their 
source,  he  makes  no  ostentatious  display  of  black-letter  learning  ;  a 
master  of  the  entire  subject  in  controversy,  and  familiar  with  the 
whole  range  of  the  debate,  he  does  not  seek  to  confound  his  adversa- 
ries or  perplex  the  court  by  that  hair-splitting  logic,  and  those  meta- 
physical abstractions  in  which  some  of  his  brethren  in  Westminster 
Hall,  even  at  that  day,  were  fond  of  indulging.  Every  thing  is  direct, 
clear,  simple,  logical,  strong — every  thing,  in  short,  characteristic  of 
the  mind  of  Marshall.  Though  his  argument  failed  to  convince  the 
judgment  of  the  court,  no  one  who  reads  it,  even  in  the  imperfect 
*  2  Washington's  Reports,  9. 


JOHN  MARSHALL.  323 

analysis  presented  by  the  report,  can  hesitate  to  admit  its  matchless 
power,  and  the  almost  irresistible  force  of  its  conclusions. 

I  had  designed,  in  this  connection,  to  allude  to  a  few  of  the  more 
interesting  cases  in  which  the  Chief-Justice  was  engaged  while  an  ad- 
vocate at  the  bar  ;  but  in  doing  so  it  would  become  necessary  to 
abridge  the  brief  notice  contemplated  of  those  grave  constitutional 
questions  which  passed  under  his  review  while  on  the  bench,  and 
the  design  is  therefore  the  more  willingly  abandoned.  Justice  to 
the  subject,  however,  will  require  some  notice  of  one  of  these  cases,  as 
well  on  account  of  its  own  intrinsic  importance,  and  the  great  interest 
it  excited  in  Virginia,  as  of  the  splendid  forensic  effort  of  Marshall  in 
its  final  argument — an  argument  which  deservedly  placed  him  on  an 
equality  with  the  very  ablest  advocates  who  had  ever  appeared  at  the 
American  bar.  I  allude  to  the  great  case  of  Ware,  Administrator, 
&c.,  vs.  Hylton  and  others,  which  decided  the  right  of  British  creditors 
under  the  treaty  of  peace,  to  recover  debts  contracted  before  the  war, 
which  had  been  sequestrated  during  the  war  by  an  act  of  the  State 
Legislature. 

This  suit  was  instituted  in  the  United  States  Circuit  Court  for  the 
District  of  Virginia,  in  1791,  and  was  terminated  only  by  its  final  ad- 
judication in  the  Supreme  Court  of  the  United  States  in  the  winter  of 
1796.  The  facts  presented  were  briefly  these.  The  defendants,  Hyl- 
tou  and  others,  citizens  of  Virginia,  had,  before  the  war  of  the  revolu- 
tion, executed  their  bond  to  the  plaintiff,  William  Jones,  a  subject  of 
Great  Britain,  (who  dying  pendente  lite,  his  administrator,  Ware,  was 
substituted,)  in  the  penal  sum  of  £2976  11s.  6d.  Under  the  Virginia 
act  of  sequestration,  passed  in  1777,  the  defendants  paid  into  the  Vir- 
ginia loan  office  part  of  their  debt,  and  took  a  certificate  from  the 
commissioners  and  a  receipt  from  the  Governor  and  Council  in  dis- 
charge thereof,  pursuant  to  the  provisions  of  the  act.  Notwithstand- 
ing this  discharge,  the  plaintiff,  after  the  treaty  of  peace,  brought  a 
suit  to  recover  the  whole  debt,  claiming  a  right  thereto  under  the 
treaty,  one  article  of  which  expressly  provided  that  "creditors,  on 
either  side,  shall  meet  with  no  lawful  impediment  to  the  recovery  of 
the  full  value,  in  sterling  money,  of  all  bonafide  debts  heretofore  con- 
tracted." The  question,  therefore,  was,  whether  the  payment  of  the 
debt  to  the  State,  pursuant  to  its  sequestration  law  was  an  absolute 


324  LIVES  OF  THE  CHIEF-JUSTICES. 

discharge  to  the  creditor  ;  and  whether  the  treaty  of  peace  could  an- 
nul a  legislative  act  of  one  of  the  States,  and  destroy  rights  acquired 
by,  or  vested  in,  individuals  by  virtue  of  such  acts.  The  case  originally 
came  on  for  trial  at  the  Circuit  Court  of  the  United  States  at  Rich- 
mond, in  November,  1791,  before  Judges  Johnson  and  Blair  of  the 
Supreme  Court,  and  Griffin,  District  Judge,  and  afterwards,  in  1793, 
before  Chief-Justice  Jay  and  Judge  Iredell,  and  the  same  District  Judge. 
Marshall  was  one  of  the  counsel  for  the  defendants,  the  American 
debtors,  having  for  his  colleagues  Patrick  Henry,  Alexander  Camp- 
bell, and  Col.  Innis,  the  Attorney-General  of  Virginia.  They  were 
opposed  by  Mr.  Ronald,  Mr.  Baker,  Mr.  Wickham,  and  Mr.  Starke. 
Such  an  array  of  counsel,  on  either  side,  would  never  have  been 
retained,  except  in  a  cause  of  the  very  greatest  magnitude  and  diffi- 
culty. The  question  was,  indeed,  one  of  the  highest  interest  to  the 
people  of  Virginia,  involving  as  it  did  the  honor  of  the  State,  and  the 
fortunes  of  many  of  her  citizens.  Mr.  Wirt,  in  his  life  of  Patrick  Henry, 
has  given  a  full  sketch  of  the  speech  of  that  celebrated  orator  in 
this  case — a  speech  which  occupied  three  days  in  its  delivery,  and 
which  he  considers  to  be  "  his  most  distinguished  display  of  profes- 
sional talents."  *  Marshall  followed  Mr.  Henry,  and  was  succeeded 
by  Campbell  and  Innis,  both  of  them  men  of  rare  powers  of  forensic 
eloquence.  The  discussion  in  this  great  case  seems  to  have  been  one 
of  the  most  brilliant  exhibitions  ever  witnessed  at  the  bar  of  Virginia, 
and  to  have  been  carried  on,  in  the  language  of  Mr.  Wirt,  "  with  so 
much  learning,  argument,  and  eloquence,  as  to  have  placed  that  bar, 
in  the  estimation  of  the  federal  judges,  above  all  others  in  the  United 
States."  That  this  eulogy  is  not  too  highly  colored,  is  evident  from 
the  language  of  Judge  Iredell,  as  it  is  found  embodied  in  the  opinion 
pronounced  by  him  in  the  case.  "  The  cause,"  he  says,  "  has  been 
spoken  to,  at  the  bar,  (alluding  to  the  trial  before  him,)  with  a  degree 
of  ability  equal  to  any  occasion.  However  painfully  I  may  at  any 
time  reflect  on  the  inadequacy  of  my  own  talents,  I  shall  as  long  as  I 
live,  remember  with  pleasure  and  respect  the  arguments  which  I  have 
heard  in  this  case.  They  have  discovered  an  ingenuity,  a  depth  of 
investigation,  and  a  power  of  reasoning  fully  equal  to  any  thing  I  have 

*  Judge  Iredell,  on  hearing  Henry's  speech,  is  said  to  have  exclaimed  on  the 
bench  :  "  Gracious  God !    He  is  an  orator  indeed !" 


JOHN  MAKSHALL.  325 

ever  witnessed,  and  some  of  them  have  been  adorned  with  a  splendor 
of  eloquence  surpassing  what  I  have  ever  felt  before.  Fatigue  has 
given  way  under  its  influence,  and  the  heart  has  been  warmed,  while 
the  understanding  has  been  instructed."  *  If  Henry  is  justly  entitled 
to  so  much  of  the  above  compliment  as  refers  to  the  "  splendor  of  elo- 
quence" exhibited  on  that  occasion,  Marshall  may  fairly  claim  his  full 
share  of  that  which  speaks  of  a  "  depth  of  investigation  and  a  power 
of  reasoning"  equal  to  any  thing  which  that  eminent  and  experienced 
judge  had  ever  before  witnessed. 

On  the  trial  at  the  Circuit,  the  court  sustained  the  main  positions 
taken  by  the  defendants  ;  and  from  this  judgment  the  plaintiffs  ap- 
pealed to  the  Supreme  Court.  When  the  cause  came  on  for  argument 
in  the  winter  of  1196,  (Mr.  Henry  in  the  mean  time  having  retired 
from  the  bar,)  Marshall  appeared  as  the  leading  counsel  for  the  de- 
fendants, with  his  associate,  Campbell,  a  man  of  whom  Wirt  says, 
that  "  for  mere  eloquence,  his  equal  has  never  been  seen  in  the  United 
States."  They  were  opposed  by  three  of  the  most  eminent  lawyers  at 
the  Pennsylvania  bar,  Tilghman,  Lewis  and  Wilcocks.  The  case  has 
been  fully  reported,  f  with  the  opinions  of  the  court  and  a  brief  sketch 
of  the  argument  of  counsel.  The  report,  however,  by  no  means  does 
justice  to  the  masterly  and  every  way  triumphant  effort  of  Marshall, 
being  little  more  than  a  resume,  or  mere  summary,  of  his  argument.  In 
order  to  gain  an  idea  of  its  astonishing  force,  and  the  wonderful  effect 
it  produced,  we  must  turn  away  from  the  reports  and  consult  cotempo- 
rary  accounts,  as  handed  down  in  the  traditionary  annals  of  the  bar. 
Though  Marshall  was  upon  the  losing  side  of  the  question,  yet  this 
circumstance  detracted  not  the  least  from  the  eclat  of  his  brilliant 
effort.  He  had  reached,  at  a  bound,  the  proudest  eminence  of  pro- 
fessional fame.  He  stood  among  his  brethren  an  intellectual  giant, 
and  the  public  gaze  was  fixed  upon  him  in  admiration.  His  reputa- 
tion was  no  longer  provincial,  it  had  become  a  part  of  the  reputation 
of  the  American  bar. 

In  one  of  those  familiar  and  agreeable  letters  which  Wirt  was  accus- 
tomed to  write  to  his  friends,  he  alludes  to  this  great  argument,  years 
after  wards,  with  that  feeling  of  admiration  for  the  Chief-Justice, 

*  Sec  Opiaion  of  Judge  Iredoll  in  this  case,  3  Dallas  Reports. 
\  3  Dallas  Reports,  pages  195  to  285. 


326  LIVES  OF    THE  CHIEF-JUSTICES. 

which  he  habitually  cherished  ;  and  contrasts  its  massive  strength  with 
the  brilliant  and  eloquent,  but  less  effective  display  of  his  associate. 
"  Campbell  played  off  his  Apollonian  airs  ;  but  they  were  lost.  Mar- 
shall spoke,  as  he  always  does,  to  the  judgment  merely,  and  for  the 
simple  purpose  of  convincing.  Marshall  was  justly  pronounced  one 
of  the  greatest  men  of  the  country.  He  was  followed  by  crowds, 
looked  upon,  and  courted  with  every  evidence  of  admiration  and 
respect  for  the  great  powers  of  his  mind.  Campbell  was  neglected 
and  slighted,  and  came  home  in  disgust.  Marshall's  maxim  seems 
always  to  have  been,  '  aim  exclusively  at  strength,'  and  from  his 
eminent  success,  I  say,  if  I  had  my  life  to  go  over  again,  I  would  prac- 
tise on  his  maxim  with  the  most  rigorous  severity,  until  the  character 
of  my  mind  was  established."  * 

Notwitstanding  the  diligence  with  which  Marshall  applied  himself 
to  his  professional  avocations,  he  found  it  impossible  to  withdraw 
wholly  from  politics.  At  that  day  party  spirit  ran  high  in  Virginia, 
and  almost  every  gentleman  of  talents  and  standing  iu  the  common- 
wealth found  himself  arrayed  on  one  side  or  the  other  of  the  great 
political  questions  which  agitated  the  public  mind.  The  proclama- 
tion of  neutrality  had  resulted  in  drawing  a  distinct  and  visible  line  of 
division  between  the  two  parties.  Marshall,  though  he  had  hailed  the 
advent  of  the  French  Revolution,  in  common  with  the  great  mass  of 
his  countrymen,  as  the  dawn  of  a  brighter  day  for  Europe  and  the 
world,  did  not  for  a  moment  hesitate  firmly  and  boldly  to  place  him- 
self on  the  side  of  the  administration,  and  vigorously  to  defend  its 
policy,  both  in  writing  and  in  oral  speech.  In  opposition  to  the 

*  2  Kennedy's  Life  of  Wirt,  p.  76. 

Wirt  was  fond  of  alluding  to  the  intellectual  characteristics  of  Marshall,  and  of 
holding  them  up  as  aa  example  and  incentive  to  others.  "  Aim,"  he  says  in  a 
letter  to  a  friend,  "  at  the  character  of  strength,  cogency,  and  comprehension, 
and  imitate  of  all  things  Judge  Marshall's  and  Locke's  simple  process  of  reason- 
ing. The  world  will  ever  give  its  sanction  to  this  as  the  truest  criterion  of  supe- 
rior minds."t  And  again  in  a  letter  to  his  son-in-law  :  "  Observe  particularly 
the  action  of  Marshall's  mind.  *  *  *  Compare  it  closely  and  carefully  with 
that  of  Mansfield,  Hardwicke,  Kenyon,  and  Thurlow.  These  are  the  great  steam- 
ships of  the  law  to  which  we  should  lash  ourselves,  till  we  catch  and  learu  to  keep 
their  momentum,  and  become  steamships  in  our  turn.' 

f  Life  of  Wirt,  Vol.  II.  pp.  67  and  383. 


JOHN  MARSHALL.  327 

opinion  of  some  of  the  first  and  ablest  statesmen  of  Virginia,  he  also 
defended  the  policy  of  the  mission  to  England,  and  the  treaty  of 
peace  uegociated  by  Mr.  Jay.  At  this  critical  juncture  in  the  affairs 
of  the  nation,  men  of  the  highest  character  and  standing  stepped  aside 
from  their  private  pursuits  and  business  avocations,  to  mingle  in  the 
primary  meetings  of  the  people,  with  the  view  of  giving  direction  and 
energy  to  the  public  sentiment.  Chancellor  Wythe  presided  at  a 
meeting  in  Richmond,  at  which  resolutions  were  passed  denouncing 
the  treaty  "  as  insulting  to  the  dignity,  injurious  to  the  interests,  dan- 
gerous to  the  security,  and  repugnant  to  the  Constitution  of  the  United 
States,"  and  Marshall,  addressing  an  assemblage  of  the  same  people, 
in  a  vigorous  and  searching  speech,  succeeded  on  his  part  in  carry- 
ing resolutions  approving  the  conduct  of  the  executive  in  sanctioning 
the  treaty. 

It  was  about  this  time  that  Marshall  was  again  drawn  from  his  pro- 
fession and  forced  to  accept  a  seat  in  the  Legislature,  contrary  to  his 
own  wishes  and  expectations.  The  circumstances  attending  his  elec- 
tion certainly  show  him  to  have  been  in  possession  of  a  very  extraordi- 
nary degree  of  personal  popularity,  and  must  have  been  highly 
gratifying  and  flattering  to  his  feelings.  They  are  related  as  follows  : 
From  the  time  of  his  withdrawal  from  the  Legislature  in  1792,  two 
opposing  candidates  had  divided  the  city  of  Richmond  ;  the  one  his 
intimate  friend,  and  holding  the  same  political  sentiments  with  him- 
self ;  the  other  a  most  zealous  partizan  of  the  opposition.  Each 
election  between  these  gentlemen,  who  were  both  popular,  had  been 
decided  by  a  small  majority,  and  the  approaching  contest  was  entirely 
doubtful.  Mr.  Marshall  attended -the  polls  at  an  early  hour  and  gave 
his  vote  for  his  friend.  While  at  the  polls  a  gentleman  demanded 
that  a  poll  should  be  opened  for  Mr.  Marshall.  The  latter  was 
greatly  surprised  at  the  proposal,  and  unhesitatingly  expressed  his 
dissent,  declaring  that  his  wishes  and  feeling  and  honor  were  engaged 
for  one  of  the  candidates.  At  the  same  time  he  announced  his  willing- 
ness to  become  a  candidate  the  next  year.  He  retired  from  the  polls 
and  immediately  gave  his  attendance  to  the  business  of  one  of  the 
courts  which  was  then  in  session.  A  poll  was,  however,  opened  for 
him  in  his  absence  by  the  gentleman  who  first  suggested  it,  notwith- 
standing his  positive  refusal.  The  election  was  suspended  for  a  few 


328  LIVES  OF  THE  CHIEF-JUSTICES. 

minutes  ;  a  consultation  took  place  among  the  freeholders  ;  they 
determined  to  support  him  ;  and  in  the  evening  he  received  the  infor- 
mation of  his  election.* 

Marshall's  election  was  a  most  important  and  timely  aid  to  the 
administration.  He  stood  now  among  the  leaders  of  the  Federal 
party  in  Yirginia.  The  position  to  which  he  was  elected  was 
precisely  the  place  where  his  aid  was  most  necessary,  and  his  efforts 
could  be  most  effectual.  The  exciting  discussion  upon  Jay's  treaty 
was  about  to  pass  from  the  popular  forum  into  the  Legislature. 
Marshall  met  and  grappled  with  it  there.  Anxious  friends,  it  is  said, 
were  solicitous  that  he  should  avoid  engaging  in  this  discussion.  It 
would  sacrifice,  it  was  thought,  a  portion  of  his  well-earned  popu- 
larity, and  might  even  subject  him  to  rude  attacks  from  the  opposi- 
tion. But  Marshall  was  not  a  man  to  shrink  from  an  independent  and 
fearless  discharge  of  duty.  The  timid  Mansfield,f  cowering  under 
the  haughty  glance  of  Pitt  on  the  floor  of  the  British  Parliament,  was 
not  the  prototype  of  John  Marshall  in  the  Virginia  Assembly.  In  him 
the  firm  nerve  and  steady  resolution  of  the  grenadier  at  Brandy  wine,  had 
ripened  and  matured  into  that  higher  species  of  courage,  which  ani- 
mates its  possessor  to  risk  popularity  and  reputation,  in  the  discharge 
of  duty,  and  fearlessly  breast  the  turbulent  waves  of  popular  pas- 
sion. He  would  not,  he  said,  in  answer  to  the  kind  remonstrances  of 
his  friends,  move  any  measure  to  excite  such  a  debate*;  but  if  the 
subject  were  brought  forward  by  others,  he  should,  at  every  hazard, 
vindicate  the  administration,  and  assert  his  own  opinions. 

That  moment  speedily  came.  The  question  of  the  treaty  was  soon 
raised,  and  the  Constitutional  objections  to  it  were  urged  with  much 
force  and  triumphant  confidence.  Marshall  took  the  floor,  in  reply. 

»  North  American  Review,  vol.  XXVI.  p.  22. 

t  "  It  must  be  admitted,"  says  Lord  Campbell,  "  that  from  a  want  of  moral 
courage  he  quailed,  not  only  under  the  ascendancy  of  Lord  Chatham — whom 
beings  of  a  superior  order  to  our  species,  might  have  been  afraid  to  encounter — 
but  of  Lord  Camdeu,  who  was  much  his  inferior  in  powers  of  mind  and  in  acquired 
knowledge.  His  cry  of  Craven !  when  the  lists  had  been  stretched,  and  the 
trumpet  had  been  sounded  for  a  passage  of  arms  on  the  libel  field,  lowered  his 
character,  and  must  have  been  a  source  of  painful  remembrance  for  himself  to  his 
dying  day.  With  boldness  he  might  have  gained  a  victory  which  would  have 
added  new  lustre  to  his  name." — 2  Lives  of  Chief-Justices  of  England,  576. 


JOHN  MARSHALL.  329 

He  entered  the  intellectual  arena,  not  encased  in  the  glittering  panoply 
of  a  splendid  eloquence,  with  the  burnished  and  shining  weapons  of  a 
gorgeous  declamation  and  an  elegant  rhetoric — but  armed  with  the 
Achillean  spear,  or  perhaps  it  may  better  be  said  with  the  Herculean 
club  of  a  close,  compact,  simple,  but  irresistible  logic,  which  bore  down 
every  thing  before  it.  His  speech  on  this  occasion  was  of  tremendous 
power!  It  has  been  represented  as  one  of  the  noblest  efforts  of  his  genius. 
So  clearly  and  so  decisively,  says  one  of  his  eulogists,  did  he  demon- 
strate the  constitutional  power  of  the  executive  to  negociate  a  com- 
mercial treaty — not  only  from  the  words  of  the  Constitution  and 
the  practice  of  nations,  but  from  the  opinions  of  Jefferson  himself,  and 
the  sanction  of  the  whole  Yirginian  delegation  in  Congress — that  the 
constitutional  objection  was  abandoned,  and  the  Assembly  confined 
itself  to  passing  a  simple  resolution,  disapproving  the  treaty  in  point 
of  expediency. 

The  fame  of  this  admirable  argument  spread  throughout  the  Union. 
Even  with  political  opponents  it  enhanced  the  estimate  of  his 
character  ;  and  it  brought  him  into  notice  of  some  of  the  most  emi- 
nent statesmen  who  then  graced  our  public  councils.*  When,  there- 
fore, he  came  to  Philadelphia,  in  1196,  to  argue  the  case  of  Ware  vs. 
Hylton,  he  had  already  acquired  something  more  than  a  provincial 
reputation — and  as  a  leader  of  the  Federal  party  in  Virginia,  he  was 
immediately  received  by  prominent  gentlemen  entertaining  these 
opinions  with  a  degree  of  kindness  and  attention,  which  not  even  his 
subsequent  splendid  efforts  at  the  bar  could  enhance.  He  himself  thus 
speaks  of  his  reception  and  first  acquaintances  in  Philadelphia  : — "  I 
then  became  acquainted  with  Mr.  Cabot,  Mr.  Ames,  Mr.  Dexter,  and 
Mr.  Sedgwick,  of  Massachusetts,  Mr.  Wadsworth  of  Connecticut,  and 
Mr.  King,  of  New  York.  I  was  delighted  with  these  gentlemen.  The 
particular  subject  (the  British  Treaty)  which  introduced  me  to  their 
notice,  was  at  that  time  so  interesting,  and  a  Virginian,  who  sup- 
ported with  any  sort  of  reputation,  the  measures  of  the  government, 
was  such  a  rara,  avis,  that  I  was  received  by  them  all  with  a  degree  of 
kindness  which  I  had  not  anticipated.  I  was  particularly  intimate 
with  Mr.  Ames,  and  could  scarcely  gain  credit  with  him  when  I  assured 
him  that  the  appropriations  would  be  seriously  opposed  in  Congress." 
*  Sec  Sketch  by  Judge  Story.  Miscellaneous  Writings,  p.  CGC. 


330  LIVES  OF  THE  CHIEF-JUSTICES. 

The  following  year  Marshall  was  again  elected  to  the  State  Legisla- 
ture. He  did  not  often  take  part  in  its  debates,  however,  and  rarely, 
except  when  some  measure  of  the  Federal  government  was  under  dis- 
cussion. It  was  during  this  session  that  in  a  debate  relative  to  the 
general  policy  of  the  administration,  in  which  Marshall  warmly 
engaged,  a  Federal  member  moved  a  resolution  expressing  the  high 
confidence  of  the  House  in  the  "  virtue,  patriotism,  and  wisdom "  of 
the  President.  A  gentleman  of  the  opposition,  hurried  away  by  the 
intemperate  zeal  of  party  feeling,  moved  to  strike  out  the  word 
wisdom.  This  motion,  as  might  have  been  expected,  called  out  an 
animated  and  even  violent  discussion,  in  which  the  whole  talent  of 
both  sides  of  the  House  was  brought  into  action.  "  Will  it  be  be- 
lieved," exclaims  Marshall,  indignantly,  in  a  letter  to  a  friend,  "  that 
the  word  was  retained  by  a  very  small  majority.  A  very  small  ma- 
jority in  the  Legislature  of  Virginia  acknowledging  the  wisdom  of 
General  Washington ! "  * 

About  this  period  the  President  tendered  him  the  office  of  Attorney- 
General  of  the  United  States,  which  he  declined,  on  the  ground  of  its  in- 
terference with  his  extensive  and  lucrative  private  practice.  On  the 
return  of  Mr.  Monroe  from  France,  Washington  solicited  him  to  accept 
this  important  mission.  It  was  a  place  whose  duties  he  was  preemi- 
nently qualified  to  discharge  ;  for  he  was  thoroughly  master  of  the 
points  involved  in  the  controversy  with  France,  and  indeed  of  the 
whole  subject  of  our  foreign  relations.  This  honorable  appoint- 
ment, too,  he  thought  proper  to  decline,  preferring  to  continue  the 
practice  of  his  profession,  for  which,  above  all  public  employments,  he 
declared  his  own  preference  was  decided.  He  was  soon,  however, 
induced  to  reconsider  this  determination,  and  to  yield  his  own  inclina- 
tions to  what  he  conceived  to  be  the  general  good  of  the  country.  In 
the  summer  of  1797,  President  Adams  appointed  him,  with  General 
Piuckney  and  Elbridge  Gerry,  on  a  special,  and  it  may  well  be  called 
an  extraordinary  mission  to  France, — an  appointment  which  in  the 
critical  state  of  public  affairs,  and  the  great  interests  hanging  on  the 
results  of  the  mission,  General  Marshall  did  not  feel  at  liberty  to 
decline. 

In  the  preceding  sketch  of  Chief-Justice  Jay,  I  have  alluded  to  the 
*  Sketch  by  Judge  Story. 


JOHN  MARSHALL.  33! 

foreign  relations  of  the  United  States  at  this  period,  and  to  the  train 
of  events  which  resulted  in  the  mission  to  England,  and  the  treaty 
subsequently  made  with  that  power.  Mr.  Monroe  was  Minister  to 
France  at  the  time  of  Jay's  treaty,  having  been  appointed  to  super- 
sede Gouverneur  Morris,  who  had  become  obnoxious  to  the  French 
Republic.  His  reception  by  the  National  Convention  had  been  nat- 
tering. The  Directory,  which,  in  the  third  year  of  the  Republic,  suc- 
ceeded the  Convention,  continued  an  official  intercourse  with  Mr.  Mon- 
roe, characterized  with  every  appearance  of  confidence  and  esteem, 
until  after  the  consummation  of  the  British  treaty,  which  produced, 
as  might  have  been  expected,  great  indignation  and  resentment.  Mr. 
Monroe  was  soon  after  recalled  by  his  Government,  not  without  some 
marks  of  disapprobation,  which  his  candid  disclosures  soon  dispelled, 
and  General  Charles  Cotesworth  Pinckney  of  South  Carolina,  Mar- 
shall having  declined  the  nomination,  was  appointed  to  succeed  him. 

Gen.  Pinckney  was  a  member  of  the  party  which  it  was  supposed 
was  inimical  to  France.  His  appointment  was  not  deemed  complhnen- 
Jary  by  the  authorities  then  representing  the  Republic.  The  speech 
of  Barras,  the  President  of  the  Directory,  to  Monroe  on  his  return 
from  France,  in  which  he  declared  that  the  Republic  would  not  "abase 
herself  by  calculating  the  consequences  of  the  condescension  of  the 
American  Government  to  the  suggestions  of  her  former  tyrants" 
(alluding  to  the  treaty  of  Jay),  had  called  out  severe  and  just  ani- 
madversion from  President  Adams  in  his  message  to  Congress.  The 
Directory  thereupon  haughtily  refused  to  receive  Gen.  Pinckney,  or 
any  minister  from  the  United  States,  "  until  after  the  reparation  of  the 
grievances  demanded  of  the  American  Government  which  the  French 
Republic  has  a  right  to  expect." 

I  do  not  intend  here  to  discuss  the  question  at  issue  between  France 
and  America,  in  regard  to  which  a  wide  diversity  of  opinion  existed  at 
that  day  and  perhaps  still  continues  to  exist.  France  complained  not 
only  of  the  neutrality  and  indifference  of  America,  but  of  her  positive 
partiality  for  England,  the  most  formidable  of  the  enemies  of  the  re- 
public ;  and  this  too  notwithstanding  the  treaties  of  1778  between 
the  United  States  and  France,  and  the  Convection  of  1788.  "The 
United  States,"  said  the  French  minister,  "  besides  having  departed 
from  the  principles  of  the  armed  neutrality  during  the  war  for  their 


332  LIVES  OF  THE  CHIEF-JUSTICES. 

independence,  have  given  to  England,  to  the  detriment  of  their  first 
allies,  the  most  striking  marks  of  an  unbounded  condescension."  On 
the  other  hand  the  American  government  replied  to  these  accusations 
that  a  constant  system  of  hostility  had  been  kept  up  on  the  commerce 
of  our  country,  under  sanction  of  the  decrees  of  the  National  Conven- 
tion. France  complained  of  a  breach  of  treaty  stipulations  on  the 
part  of  America,  and  America  complained  of  depredations  on  her  com- 
merce, committed  by  France.  Neither  party  perhaps  was  without 
some  plausible  ground  of  complaint.  But  while  the  injuries  of  France 
to  America  were  positive,  open,  and  palpable,  those  of  America  to 
France  were  constructive  merely  and  of  a  negative  character.* 

Notwithstanding  the  haughty  conduct  of  France,  and  her  refusal  to 
receive  Mr.  Pinckney,  President  Adams  soon  after  being  placed  at  the 
head  of  the  government,  determined  to  make  another  attempt  to  re- 
store the  amicable  relations  which  had  existed  between  that  Republic 
and  America,  and  to  make  "  a  fresh  attempt  at  negociation  on  terms 
compatible  with  the  rights,  duties,  interests,  and  honor  of  the  nation." 
Mr.  Adams  desired  Jefferson  to  accept  this  mission,  who  declined. 
Failing  in  this,  it  was  his  intention  to  appoint  Madison,  with  Hamiltou 

*  A  writer  in  the  North  American  Review  for  July,  1834,  concedes  it  to  be  at 
least  a  very  doubtful  question  whether  we  were  not  actually  bound  by  the  treaty 
to  take  part  with  France  in  her  Revolutionary  wars,  unless  we  could  obtain  her 
consent  to  our  neutrality.  Hamilton,  and  the  other  advocates  of  a  neutral  policy, 
admitted  that  the  alliance  by  the  treaty  of  1778  was  a  permanent  alliance — des  a 
present  et  pour  toujours — but  it  was  contended  that  such  an  alliance  could  only 
be  construed  to  apply  to  a  defensive  war,  and  that  the  existing  war  on  the  part  of 
France  was  an  offensive  one.  Neither  of  these  positions,  however,  seems  to  be 
strictly  correct ;  certainly  not  the  latter,  for  if  ever  there  was  a  defensive  war  it 
was  that  into  which  the  French  Republic  was  forced  in  1792.  In  regard  to  the  for- 
mer of  these  positions,  it  may  be  said  that,  if  the  treaty  did  create  such  an  obliga- 
tion, it  was  released  by  the  positive  declaration  of  the  French  Government,  com- 
municated through  its  minister  Genet  on  his  arrival  in  this  country,  who  declared 
that  the  Republic  did  not  expect  .the  United  States  to  engage  with  it  in  actual 
hostilities.  The  French  minister,  Talleyrand,  mentions  this  fact  in  one  of  his 
communications  to  Pinckney,  Marshall  and  Gerry.  "  The  Republic  was  hardly 
constituted,"  he  says,  "  when  a  minister  was  sent  to  Philadelphia,  whose  first  act 
was  to  declare  to  the  United  States,  that  they  would  not  be  pressed  to  execute  the 
defensive  clauses  of  the  treaty  of  Alliances,  although  the  circumstances  in  the 
least  equivocal  manner  exhibited  the  casus-  fcederis."— See  American  State 
Papers. 


JOHN  MARSHALL.  333 

as  his  colleague.  But  upon  merely  mentioning  the  name  of  Madison 
to  one  of  his  Cabinet,  he  found,  he  says,  that  "  it  excited  a  profound 
gloom  and  solemn  countenance,"  which  after  some  time  broke  out  in 
"  Mr.  President,  we  are  willing  to  resign."  *  Fearing  that  Madison, 
if  nominated,  would  encounter  a  veto  from  the  Senate,  he  abandoned 
the  idea  of  appointing  him,  and  with  him  Hamilton  also. 

Still  adhering  to  his  design  of  appointing  some  gentleman  from  the 
Republican  party  on  this  important  mission,  Mr.  Adams,  in  opposition 
to  the  wishes  of  his  Cabinet,  but  with  that  spirit  of  independence  and 
self-reliance  which  marked  all  his  actions,  named  Mr.  Gerry,  who,  after 
some  hesitation,  consented  to  accept  the  appointment,  with  Gen.  Pinck- 
ney  and  Marshall  for  his  colleagues. 

It  was  with  great  reluctance  that  Marshall  entered  upon  this  im- 
portant duty.  He  had  a  short  time  before  declined  the  appointment 
of  sole  minister  to  France,  having  determined  to  remain  for  the  future 
entirely  in  his  profession,  and  he  thought,  he  says,  that  determina- 
tion unalterable.  His  situation  at  the  bar  appeared  to  him  more 
independent  and  not  less  honorable  than  any  other,  and  his  pre- 
ference for  it  was  decided.  But  public  considerations  and  a  high  sense 
of  duty  finally  overcame  his  scruples  and  he  concluded  to  accept  the 
appointment. 

The  history  of  this  mission  is  one  of  the  most  singular  that  is  any- 
where recorded  in  the  annals  of  diplomacy.  The  envoys  met  in  Paris 
on  the  4th  of  October,  1197.f  It  was  at  a  moment  peculiarly  inaus- 
picious for  the  success  of  their  mission.  The  Republic  had  vanquished 
its  enemies  on  every  side.  Spain,  Portugal,  and  Holland  had  succes- 
sively yielded.  Italy  lay  prostrate  at  the  feet  of  the  conqueror  ;  and 

•  See  Correspondence  of  President  Adams. 

t  On  their  very  entry  into  Paris  the  envoys  were  besieged,  and  obliged  to  pay 
the  customary  tribute.  "  The  morning  after  my  arrival,"  says  Mr.  Gerry,  "  I  was 
waited  upon  by  the  musicians  of  the  Executive,  and  the  next  day  by  a  deputa- 
tion of  Poissards,  or  fishwomen,  for  presents."  These  interesting  deputations 
expected  fifteen  or  twenty  guineas,  which  each  of  the  envoys,  according  to  custom, 
was  obliged  to  give.  Mr.  Gerry,  it  seems,  ncgociatcd  with  the  Poissards  through 
the  secretary  of  the  legation,  Major  Rutlcdge,  and  thus  escaped  their  kind  caresses ; 
but  Marshall  and  Pinckney  were  not  so  fortunate :— "  When  the  ladies,"  adds  Mr. 
Gerry,  "  get  sight  of  a  minister,  as  they  did  of  my  colleagues,  they  smother  him 
with  their  delicate  kisses." 


334  LIVES  OF  THE  CHIEF-JUSTICES. 

Bonaparte  had  forced  the  Emperor  of  Austria  into  the  celebrated 
treaty  of  Carapo  Formia.  The  Directory  had  reached  the  zenith  of  its 
pride  and  arrogance  ;  and  its  haughty  temper  had  been  already  mani- 
fested toward  America,  in  such  a  manner  as  to  leave  but  slight  hopes 
of  a  successful  and  honorable  negotiation.  The  dispatches  of  the 
envoys  disclose  a  most  revolting  picture  of  the  shameless  intrigues  and 
corruptions  of  French  diplomacy,  under  the  auspices  of  the  Directory, 
guided  by  the  subtle  genius  of  that  master  of  the  art,  Talleyrand, 
The  Americans  were  informed,  not  officially,  and  not  even  responsibly, 
that  the  Directory  were  exasperated  at  some  part  of  the  President's 
speech  at  the  opening  of  Congress,  and  that  they  would  not  probably 
have  a  public  audience  until  their  negotiation  was  finished ;  and  that, 
in  order  to  soothe  the  irritable  temper  of  the  Directory,  and  pave  the 
way  to  a  negotiation,  two  things  were  necessary — first  to  propose  a 
loan  by  the  United  States  of  some  millions  of  dollars  for  the  French 
treasury,  and  secondly  "in  compliance  with  diplomatic  usage"  address 
themselves  to  the  "  private  gratification  of  certain  high  officers  of  gov- 
ernment" by  paying,  as  a  sort  of  corruption  fund,  the  sum  of  fifty 
thousand  pounds  sterling.  Without  pursuing  the  intricacies  of  this 
semi-official  negotiation,  if  such  it  may  be  called,  suffice  it  to  say  the 
Americans  refused  the  tribute.  The  consequence  was  that  they  were 
never  officially  received  ;  that  they  remained  six  months  in  Paris,  not 
merely  unaccredited,  but  exposed  to  personal  and  official  mortifications 
of  the  most  humiliating  kind  ;  and  were  finally  obliged  to  return,  with- 
out effecting  the  object  of  their  mission,  and  even  without  the  common 
courtesy  of  an  official  discussion  of  it.* 

Faithful  to  their  trust,  and  resolved  to  leave  no  means  untried  to 
accomplish  their  object,  the  envoys  remained  at  their  post  under  all 
these  discouragements  and  difficulties.  On  the  17th  of  January  they 
addressed  the  government  through  the  Minister  for  Foreign  Affairs  in 
a  voluminous  and  elaborate  paper,  which  contained  a  full  statement  and 
defence  of  the  American  policy  with  regard  to  France.  This  masterly 
communication  is  found  among  the  published  American  State  Papers.f 
It  needs  to  be  closely  and  carefully  read  in  order  to  be  fully  appre- 
ciated. It  was  draughted  by  General  Marshall,  and  without  doubt 

*  See  Austin's  Life  of  Gerry,  for  a  full  and  impartial  account  of  thi?  mission, 
t  State  Papers  from  1797  to  1801,  pp.  219  to  260. 


JOHN    MARSHALL.  335 

will  compare  favorably  with  the  ablest  diplomatic  correspondence  in 
the  American  archives.  The  author  of  the  life  of  Gerry  claims  for 
that  gentleman  the  credit  of  the  revision  of  this  admirable  State 
paper,  particularly,  he  says,  in  regard  to  its  style  and  manner,  and  in 
giving  it  that  "  softening  and  courteous  form  of  address,"  which  every- 
where pervades  it.  However  this  may  be — and  the  claim  is  perhaps 
well  founded — one  thing  is  certain,  that  the  style  and  manner,  ad- 
mirable though  these  are,  may  be  considered  as  the  least  of  its  merits. 
IB  its  matter,  and  the  substance  of  its  argument — clear  and  luminous  in 
its  statement,  strong  in  its  solid,  manly  sense,  and  impregnable  in  its 
logic — is  found  its  main  title  to  our  admiration.  It  exhausts  the 
whole  subject  in  controversy  ;  nothing  more  apparently  remains  to  be 
said,  and  at  its  close  one  is  at  a  loss  to  know  or  conjocture  what  kind 
of  plausible  case  can  possibly  be  made  out  in  reply,  even  by  the  astute 
and  subtle  intellect  of  a  Talleyrand. 

To  this  communication  no  immediate  reply  was  made.  The  envoys 
still  remained  unrecognized,  isolated,  cut  off  from  all  communication 
with  the  government  except  that  arising  from  the  occasional  and  un- 
official visits  of  Mr.  Gerry  to  Talleyrand,  and  interviews  with  certain 
nameless  and  mysterious  intriguers,  who  had  apparently  been  commis- 
sioned to  sound  the  American  Ministers  and  bring  them  to  terms.  On 
the  19th  of  February  they  sent  to  Talleyrand  desiring  to  know  if  he  had 
any  communication  to  make  in  consequence  of  their  letter  of  the  17th 
of  the  previous  month.  The  minister  replied  that  he  had  no  answer 
to  make  ;  the  Directory  had  taken  no  order  on  the  subject — when 
they  did  he  would  inform  the  envoys  of  it.  Soon  after  they  again 
wrote  to  Talleyrand  soliciting  a  personal- interview.  He  appointed 
the  2d  March,  at  which  time  they  waited  upon  him  and  were  received 
in  a  private  and  unofficial  capacity.  At  this  interview  and  another 
which  took  place  a  few  days  -later,  the  French  minister  disclosed  very 
clearly  the  intentions  of  his  government,  and  gnve  the  envoys  to 
understand  in  a  manner  not  to  be  mistaken,  that  a  peace-offering  to 
the  wounded  feelings  of  the  Directory  was  necessary  in  the  shape  of  a 
loan,  as  a  preliminary  to  negotiation.  To  this  proposition  the  envoys 
unanimously  refused  to  accede.  Talleyrand  then  modiQed  his  proposi- 
tion to  the  effect  that  the  loan,  instead  of  being  immediately  advanced, 
either  directly,  or  by  the  purchase  of  Dutch  rescriptions  which  the 


336  LIVES   OF    THE  CHIEF-JUSTICES. 

Directory  then  happened  to  have  on  hand,  should  be  contracted  pay- 
able after  the  war,  arid  in  supplies  at  St.  Domingo.  On  this  proposi- 
tion it  is  understood  a  difference  of  opinion  arose  among  the  envoys. 
Marshall  aud  Pinckney  absolutely  rejected  it,  and  declined  considering 
the  proposal  in  any  form  ;  Mr.  Gerry  did  not  deem  it,  in  this  modified 
form,  wholly  inadmissible  as  the  basis  of  a  treaty  ad  referendum,  re- 
serving to  himself  the  right  of  a  decision  on  the  whole  matter  when  a 
decision  should  be  eventually  necessary.* 

This  circumstance  furnished  an  occasion  to  Talleyrand  for  the  em- 
ployment of  one  of  his  characteristic  strokes  of  policy.  He  attempted 
to  separate  the  American  envoys  and  to  open  negotiations  with  that 
"  one  of  the  three  whose  opinions,  presumed  to  be  more  impartial, 
promise,  in  the  course  of  the  explanations,  more  of  that  reciprocal 
confidence  (plus  de,  cette  confiancc  redproque)  which  is  indispensable." 
This  proposition  was  made  in  a  letter  from  the  French  minister  under 
date  of  March  18th,  in  which  he  replies  at  length  to  the  communica- 
tion of  the  American  envoys,  and  with  much  ingenuity  and  no  little 
plausibility  of  argument  states  the  French  side  of  the  question.f 

It  was  now  evident  that  all  hopes  of  the  successful  result  of  the 
mission  were  at  an  end.  Talleyrand's  proposition  of  opening  a  nego- 
tiation with  Mr.  Gerry  alone  was  of  course  promptly  declined.  The 
envoys,  however,  deemed  it  their  duty  to  reply  to  his  communication, 
which  they  did  on  the  third  of  April  in  a  letter  drafted  by  General 
Marshall,  and  signed  by  all  three  of  the  envoys.f  This  calm,  tem- 
perate and  dignified  reply  fully  equals  in  all  respects  the  original  com- 
munication of  the  17th  of  January,  and  fully  merits  the  warm  eulogy 
which  it  receives  at  the  hands  of  the  biographer  of  Mr.  Gerry.  Ill 
clear  and  forcible  language,  with  firmness,  frankness,  and  plainness 
suited  to  the  character  of  the  United  States,  it  meets,  answers,  refutes, 
every  topic  in  succession  which  was  contained  in  the  minister's  letter. 
It  denies  his  accusations,  it  corrects  his  misstatements,  it  overturns  his 
arguments,  and  presents  another  splendid  instance  of  the  powerful  de- 

*  2  Austin's  Life  of  Gerry,  p.  219.  Mr.  Austin  explains  and  defends  the  opinions 
and  conduct  of  Mr.  Gerry  on  this  subject ;  particularly  against  the  severe  and  un- 
just censures  of  the  Secretary  of  State. 

t  American  State  Papers  1797  to  1801,  pp.  270  to  278. 

t  American  State  Papers,  from  1797  to  1801,  pp.  278  to  304. 


JOHN  MARSHALL.  337 

fence  which  integrity,  and  talents,  and  learning  are  capable  of  making 
for  the  injured  rights  of  the  country.* 

The  letter  closed  with  the  request  that  if  the  Directory  should  be 
pleased  to  order  passports  for  the  whole  or  any  of  them,  such  passports 
would  be  accompanied  with  letters  of  safe  conduct,  &c.  On  the  same 
day  Mr.  Gerry  received  a  note  from  Talleyrand  inviting  him  to  resume 
their  "  reciprocal  communications,"  on  the  supposition,  as  the  minister 
remarks,  "  that  Messrs.  Marshall  and  Pinckney  have  thought  it  useful 
and  proper,  in  consequence  of  the  intimations  given,  &c.  to  quit  the 
territories  of  the  Republic."  Thus  these  two  gentlemen  received,  as 
President  Adams  expresses  it,  their  congt.  Mr.  Gerry,  though  he  re- 
mained in  France  after  the  departure  of  Marshall  and  Pinckney, 
promptly  rejected  all  propositions  to  proceed  to  a  separate  negotia- 
tion, maintaining,  contrary  to  the  opinion  of  Talleyrand,  that  his 
whole  powers  ceased  with  the  departure  of  his  colleagues. 

So  terminated  this  inglorious,  this  unfortunate  mission.  "  History," 
says  Marshall,  "will  scarcely  furnish  the  example  of  a  nation,  not  ab- 
solutely degraded,  which  has  received  from  a  foreign  power  such  open 
contumely  and  undisguised  insult,  as  were,  on  this  occasion,  suffered 
by  the  United  States  in  the  persons  of  their  ministers."! 

After  divers  perplexing  embarrassments,  passports  were  at  length 
received  about  the  12th  of  April,  and  General  Marshall  immediately 
prepared  to  return  to  the  United  States.  A  difficulty  occurred  in  his 
obtaining  a  letter  of  safe  conduct  for  the  vessel  in  which  he  proposed 
to  embark,  which  induced  him  to  express  a  design,  in  case  it  was  re- 
fused, of  returning  through  England.  The  same  confidential  agent  of 
Mons.  Talleyrand,  with  whom  Marshall  had  formerly  conversed,  said 
to  him  on  learning  this,  that  it  would  give  great  offence  to  the  govern- 
ment of  France  ;  and  further,  that  if  he  should  do  so,  it  would  be 
immediately  published  by  the  government  that  he  had  gone  to  Eng- 
land to  receive  the  wages  he  had  earned  by  breaking  off  the  treaty 
with  France  I  There  were  men  in  France,  it  seems,  who  could  ac- 
tually be  made  to  believe  that  Marshall  and  Pinckney,  in  refusing  to 
compromise  the  honor  of  their  country  by  yielding  to  the  grasping 
cupidity  of  the  Republic,  were  the  paid  stipendiaries  of  a  foreign 

*  Life  of  Gerry,  Vol.  H.  p.  225. 
t  2  Life  of  Washington,  427 
22 


338  LIVES  OF  THE  CHIEF-JUSTICES. 

power  !  It  is  not  to  be  supposed  that  the  threat  would  have  deterred 
the  American  minister  from  his  design  of  returning  by  way  of  Eng- 
land ;  but  the  receipt  of  his  letter  of  safe  conduct  soon  after  removed 
the  necessity  of  putting  any  such  design  into  execution  ;  and  shaking 
the  dust  of  Paris  from  his  feet,  he  embarked  from  France  on  the  16th 
of  April,  1798,  for  his  native  country. 

The  high  reputation  of  Marshall  suffered  no  diminution  by  reason 
of  the  inglorious  termination  of  this  mission.  On  the  contrary  his 
conduct  was  everywhere  commended  and  applauded.  On  the  17th  of 
June,  1798,  he  arrived  at  New  York,  where  he  was  received  with  the 
highest  marks  of  respect.  His  entrance  into  Philadelphia,  two  days 
afterwards,  had  the  eclat  of  a  triumph.  Escorted  by  the  military 
from  Frankford  to  the  city,  he  found  himself,  on  his  arrival,  surrounded 
by  crowds  of  citizens  anxious  to  testify  their  veneration  and  gratitude. 
Public  addresses  were  made  to  him,  breathing  sentiments  of  the 
liveliest  affection  and  respect.  A  public  dinner  was  given  to  him  by 
members  of  both  houses  of  Congress,  "  as  an  evidence  of  affection  for 
his  person,  and  of  their  grateful  approbation  of  the  patriotic  firmness 
with  which  he  sustained  the  dignity  of  his  country  in  his  important 
mission,"  and  the  country  at  large  responded  with  one  voice  to  the 
sentiment  pronounced  at  this  celebration  ;  "  Millions  for  defence,  but 
not  a  cent  for  tribute."* 

It  appeared  to  Marshall  that  the  period  had  now  arrived  when  he 
would  be  able  to  realize  the  object  of  his  warmest  aspirations,  by  de- 
voting his  time  and  talents  exclusively  to  the  practice  of  that  noble 
profession  to  which  he  was  so  ardently  attached.  Solicited  to  become 
a  candidate  for  Congress,  he  promptly  declined,  and  soon  found  him- 
self again  immersed  in  causes,  and  surrounded  by  his  old  clients.  But 
it  seemed  his  fortune  never  to  be  able  to  escape  the  demands  of  public 
duty.  Diligently  though  he  labored  to  shun  them,  public  employments 
on  every  side  followed  him,  sought  him  out,  and  pressed  themselves 
upon  him. 

The  circumstances  which  called  Marshall  again  from  his  profession, 

and  which  separated  him  from  it  finally  and  for  ever,  are  so  peculiar 

and  withal  so  full  of  interest,  that  I  cannot  pass  them  by  in  silence. 

He  had  been  invited  by  Washington  to  spend  a  few  days  at  Mount 

*  Eulogy  by  Binney. 


JOHN  MARSHALL.  339 

Vernon,  in  company  with  Bushrod  Washington,  a  nephew  of  the  Gene- 
ral. Soon  after  their  arrival  the  General  communicated  to  his  guests 
the  main  object  of  his  invitation.  It  was  to  urge  both  of  them  to 
enter  public  life,  and  become  candidates  for  Congress.  The  cause  of 
Washington's  solicitude  upon  this  occasion  is  quite  apparent.  It  was, 
as  he  believed,  a  most  critical  period  in  the  history  of  the  country. 
The  final  contest  between  the  Federal  and  the  Republican  parties  was 
at  hand.  His  confidence,  as  I  have  elsewhere  remarked,  rested  with 
the  former  ;  the  latter  served  only  to  excite  his  distrust  and  awaken 
his  alarm.  In  the  honest  sincerity  of  his  heart,  he  believed  it  to  be  a 
time  when  good  men  should  come  forward  and  strive  to  arrest  what  he 
regarded  as  the  downward  tendency  of  society  and  government,  whose 
future  filled  him  with  the  most  gloomy  forebodings.  There  is  a  sad 
and  touching  interest  awakened  by  these  last  thoughts  and  actions  of 
this  great  man,  whose  mind,  full  of  gloomy  apprehensions,  was  keenly 
alive  to  unfounded  suspicions  of  evil ;  whose  vision,  darkened  by  un- 
substantial shadows,  was  unable  to  penetrate  the  veil  which  concealed 
the  brilliant  scenes  of  the  future.  To  him  it  was  not  permitted,  as  to 
the  chosen  leader  of  Israel  from  Pisgah's  top,  to  see,,  though  he  might 
not  hope  to  enter,  that  promised  land,  destined  to  be  the  future  inheri- 
tance of  his  people. 

These  dark  apprehensions  and  forebodings  moved  Washington  to  an 
earnest  and  pressing  effort  to  induce  such  men  as  Marshall  and  Lush- 
rod  Washington  to  enter  the  public  service  for  the  purpose  of  attempt- 
ing to  arrest  the  swelling  tide  of  evil.  I  have  at  this  moment  before 
me  one  of  his  autograph  letters,  written  about  the  same  period — the 
last  year  of  his  life — on  the  same  subject,  to  Patrick  Henry.  }t  is 
marked  in  the  margin  "  confidential,"  and  exhibits  in  every  line  and 
letter — in  every  character  of  that  methodical  and  somewhat  formal, 
but  clear,  and  bold  handwriting,  unmistakeable  evidence  of  authen- 
ticity. 

"  It  would  be  a  waste  of  time,"  he  says,  "  to  attempt  to  bring  to 
the  view  of  a  person  of  your  observation  and  discernment,  the  endea- 
vors of  a  certain  faction  among  us,  to  disquiet  the  public  mind  with  un- 
founded alarms;  to  arraign  every  act  of  the  administration;  to  set  the 
people  at  variance  with  their  government ;  and  to  embarrass  all  its 
measures.  Equally  useless  would  it  be  to  predict  what  must  be  the 


34:0  LIVES  OF  THE  CHIEF-JUSTICES. 

inevitable  consequence  of  such  policy  if  it  cannot  be  arrested."  The 
writer  then  proceeds  to  descant  upon  the  gloomy  prospects  of  the 
country,  and  to  lament  the  fact  that  "  the  most  respectable  and  best 
qualified  characters  among  us  will  not  come  forward"  in  the  public 
service.  "  Vain  will  it  be,"  he  continues,  "  to  look  for  peace  and 
happiness,  or  for  the  security  of  liberty  or  property,  if  civil  discord 
should  ensue  ;  and  what  else  can  result  from  the  policy  of  those 
among  us,  who,  by  all  the  means  in  their  power,  are  driving  matters 
to  extremity,  if  they  cannot  be  counteracted  effectually  ?  The  views 
of  men  can  only  be  known  or  guessed  at  by  their  words  or  actions. 
Can  those  of  the  leaders  of  opposition  be  mistaken  then  if  judged  by 
this  rule  ?  That  they  are  followed  by  numbers  who  are  unacquainted 
with  their  designs,  and  suspect  as  little  the  tendency  of  their  princi- 
ples, I  am  fully  persuaded.  But  if  their  conduct  is  viewed  with  indif- 
ference— if  there  is  activity  and  misrepresentation  on  one  side,  and 
supineness  on  the  other,  their  numbers  accumulated  by  intriguing  and 
discontented  foreigners,  under  proscription,  who  were  at  war  with  their 
own  government,  and  the  greater  part  of  them  with  all  governments, 
their  numbers  will  increase,  and  nothing  short  of  Omniscience  can 
foretell  the  consequences."* 

These  serious  arguments  were  now  urged  upon  Marshall  and  Bush- 
rod  Washington.  The  conference,  we  are  told,  was  earnest,  and  full 
of  mutual  confidence.  The  latter  gentleman  readily  yielded  to  the 
persuasions  of  his  uncle,  but  the  former  hesitated,  on  the  ground  of 
his  situation  and  the  necessity  of  attending  to  his  private  affairs. 
"Washington  combatted  these  views,  and  insisted  upon  the  higher  duty 
of  every  good  citizen  to  sacrifice  his  inclinations  and  interests,  and  if 
needs  be,  to  sacrifice  himself  also  on  the  altar  of  his  country's  welfare. 
To  these  persuasions  Marshall  finally  yielded — who  could  resist  such  an 
appeal  ? — and  consented  to  become  a  candidate  for  Congress.  After 
a  sharp  contest  he  was  elected,  and  took  his  seat  in  that  body  in  De- 
cember, 1799.  In  the  meantime  President  Adams  tendered  him  a 
place  on  the  bench  of  the  Supreme  Court,  vacant  by  the  death  of 
Judge  Iredell,  which  he  promptly  declined. 

'Mr.  Henry  responded  to  this  earnest  appeal,  by  offering  himself  as  a  candidate 
for  the  State  Legislature,  to  which  he  was  elected.  The  letter  from  which  the 
above  extract  is  taken,  is  published  among  Sparks'  Collection  of  the  Writings  of 
Washington. 


JOHN  MARSHALL.  34.} 

The  elections  had  been  eminently  favorable  to  the  Federalists. 
They  had  a  clear  majority  of  twenty  in  the  House  of  Representatives  ; 
still  they  were  not  able  to  carry  any  strong  measure  during  the  session, 
for  the  reason,  perhaps,  alleged  by  Jefferson,  namely,  that  "  many  of 
them  were  new  and  moderate  men,  and  soon  saw  the  true  character  of 
the  party,  to  which  they  had  been  well  disposed,  at  a  distance."*  Of 
these  "  new  and  moderate  "  men,  Marshall  was  confessedly  the  leader- 
It  is  quite  clear,  that  though  politically  classed  as  Federalists,  they 
were  not,  in  the  language  of  the  present  day,  regarded  as  "  reliable/' 
by  the  partisans  of  the  cabinet  and  the  advocates  of  strong  measures. 
This  will  appear  by  the  following  passage  from  a  letter  of  Wolcott, 
written  about  the  time  the  session  commenced.  To  the  Connecticut 
secretary,  it  seems,  the  mind  of  the  great  Virginia  lawyer  was  not  cast 
in  a  mould  large  enough,  and  comprehensive  enough  to  enable  him  to 
grasp  the  full  merits  of  the  Hamiltonian  policy. 

"  A  number  of  distinguished  men,"  he  says,  "  appear  from  the 
southward,  who  are  not  pledged  by  any  act  to  support  the  system  of 
the  last  Congress  ;  these  men  will  pay  great  respect  to  the  opinions  of 
General  Marshall  ;  he  is,  doubtless,  a  man  of  virtue  and  distinguished 
talents,  but  he  will  think  much  of  the  State  of  Virginia,  and  is  too 
much  disposed  to  govern  the  world  according  to  rules  of  logic;  he  will 
read  and  expound  the  Constitution,  as  if  it  were  a  penal  statute,  and 
will  sometimes  be  embarrassed  with  doubts,  of  which  his  friends  icill  not 
perceive  the  importance."^ 

These  apprehensions  of  the  Secretary  were  realised  during  the  ses- 
sion.J  It  has  been  truly  said  of  Marshall,  that  his  course  in.  Congress 

*  Jefferson's  Writings,  Vol.  HL,  p.  436, 

f  Oliver  Wolcott  to  Fisher  Ames.    Dec.  29th,  1799. 

|  Mr.  Adams'  discarded  Secretary  of  War,  McHenry,  some  months  later,  when 
Marshall  had  become  Secretary  of  State,  even  doubted  his  fidelity  to  Federal  prin- 
ciples. In  a  letter  to  Wolcott,  under  date  of  November  9th,  1800,  he  says  :— "  I 
have  been  told  Mr.  Marshall  has  signified  that  he  does  not  mean  to  resign  in  the 
event  of  Mr.  Jefferson  being  elected  President,  but  to  wait  most  patiently  the  de- 
velopment of  his  politics.  Will  there,  my  friend,  be  so  great  an  antipathy  be- 
tween the  politics  of  these  two  gentlemen,  that  one  of  them  must  fly  off  from  the 
other  ?"  Wolcott  hastens  to  re-assure  his  friend  on  the  point :— "  The  opposition 
of  sentiment "  between  Jefferson  and  Marshall,  he  says,  appears  to  be  decided, 
and  he  believes  to  be  unchangeable. — 2  Gibbs'  Wolcott,  445,  448. 

Upon  this  point,  however,  Marshall  is  himself  the  best  authority.    "  No  politi- 


342  LIVES  OF  THE  CHIEF-JUSTICES, 

was  governed  solely  by  his  own  convictions  of  right ;  that  if  he  was  a 
party  man  he  was  so  by  position,  and  not  from  temper  or  partial 
views  ;  and  that  he  drew  from  his  own  convictions  even  that  which 
went  to  sustain  the  efforts  and  to  augment  the  resources  of  his  party. 
Nor  was  he  incapable,  when  the  dictates  of  his  own  independent  judg- 
ment required  it,  to  throw  off  party  trammels,  and  stand  aside  from 
party  associations.  Thus  upon  a  resolution  to  repeal  the  obnoxious 
section  of  the  Sedition  Law,  passed  at  the  previous  session,  his  name 
is  found  recorded  in  the  affirmative,  while  the  names  of  all  those  with 
whom  he  generally  acted  are  on  the  other  side. 

Marshall  was  placed  at  the  head  of  the  committee  appointed  to 
prepare  an  answer  to  the  President's  speech  ;  and  he  participated,  in- 
fluentially,  in  all  the  more  important  discussions  and  measures  of  Con- 
gress during  the  session.  These  measures  are  a  part  of  the  general 
history  of  the  times  which  it  would  be  improper  in  this  place  to  re- 
view. One  of  them,  however,  is  too  notable,  and  too  intimately  con- 
nected with  the  fame  of  the  Chief-Justice,  to  be  passed  over  in  silence. 
I  allude  to  the  famous  debate  upon  the  resolutions  of  Edward  Liviug- 

cal  considerations,"  he  says,  in  a  private  letter  to  Hamilton,  written  soon  after  this 
time,  and  while  the  presidential  contest  was  pending,  and  the  hard  option  was 
thrown  on  the  Federalists  to  choose  between  Jefferson  or  Burr  :  '•  No  political  con- 
siderations could  induce  me  to  be  the  Secretary  of  State  while  there  was  a  Presi- 
dent, whose  political  system  I  believed  to  be  at  variance  with  my  own."  His  pre- 
judices against  Jefferson  were  so  deeply  rooted  and  inveterate,  that  he  even  pre- 
ferred Burr,  until  convinced  by  the  persevering  and  passionate  appeals  of  Hamil- 
ton to  the  contrary.  Still,  he  said,  he  could  not  aid  Mr.  Jefferson  lest  it  might  be 
suspected  that  a  desire  to  be  well  with  the  successful  candidate,  had  in  some  degree 
governed  his  conduct.  He  regarded  him  as  a  man  who  would  "  embody  himself 
with  the  House  of  Representatives."  "  By  weakening  the  office  of  President,"  he 
goes  on  to  remark,  "  he  will  increase  his  personal  power.  He  will  diminish  his 
responsibility,  sap  the  fundamental  principles  of  the  Government,  and  become  the 
leader  of  that  party  which  is  about  to  constitute  the  majority  in  the  Legislature. 
The  morals  of  the  author  of  the  letter  to  Mazzei  cannot  be  pure." — Letter  to 
Hamilton.  6  Hamilton's  Works,  502. 

These  early  prejudices  were  increased  by  subsequent  differences  and  conflicts  of 
opinion,  until  they  resulted,  after  Burr's  trial,  in  a  final  cessation  of  all  personal 
intercourse  between  these  two  gentlemen  ;  a  course  of  conduct  in  which,  as  I  am 
informed  by  a  venerable  gentleman  now  living,  and  then  at  the  bar,*  the  example 
of  Marshall  was  followed  by  two  or  three  of  his  brethren  on  the  bench. 

*  General  Walter  Jones. 


JOHN  MARSHALL.  34.3 

ston  censuring  the  President  for  his  conduct  relative  to  the  extradition 
of  Thomas  Nash,  otherwise  called  Jonathan  Robbins.  Nash  was  ac- 
cused of  piracy  and  murder  on  board  a  British  national  vessel  at  sea, 
and  though  claiming  to  be  an  American  citizen,  was,  on  proof  of  the 
offence  satisfactory  to  the  Court,  surrendered  to  the  British  authorities 
by  the  District  Court  of  South  Carolina,  at  the  desire  and  request 
of  the  President,  and  was  subsequently  executed.  Livingston's  reso- 
lutions, which  were  introduced  on  the  21st  of  February,  declared  the 
case  to  be  one  exclusively  of  judicial  inquiry,  and  that  the  decision  by 
the  President  of  the  question  whether  the  casus  f&deris  had  arisen, 
and  his  directions  to  Judge  Bee,  were  "  a  dangerous  interference  of 
the  executive  with  judicial  decisions,"  and  that  the  compliance  of  the 
Judge  was  "  a  sacrifice  of  the  constitutional  independence  of  the  judi- 
cial power  and  exposes  the  administration  thereof  to  suspicion  and 
reproach." 

These  strong  resolutions  of  censure,  arousing,  as  may  well  be  sup- 
posed, the  warmest  party  and  political  feelings,  excited  one  of  the  most 
animated  and  powerful  debates  which  ever  arose  in  the  halls  of  the 
American  Congress.  The  whole  talent  of  the  house — and  it  was  a 
house  distinguished  even  among  the  early  American  Congresses  for  its 
splendid  ability,  genius,  eloquence,  statesmanship — was  drawn  out  in 
this  magnificent  debate.  On  one  side  stood  Edward  Livingston,  Gal- 
latin,  Macon,  Nicholas  ;  on  the  other,  Otis,  Bayard,  Harper,  Dana, 
Lee,  B,utledge,  and  last,  and  greatest  of  all  in  the  massive  strength 
of  his  intellect,  and  the  irresistible  power  of  his  faculties,  John  Mar- 
shall, of  Virginia. 

On  the  6th  of  March  Gen.  Marshall  took  the  floor,  and  in  reply  to 
Livingston  and  others  delivered  that  elaborate  and  triumphant  ar- 
gument which,  in  the  language  of  Judge  Story,  settled  then  and 
for  ever  the  points  of  national  law  upon  which  the  controversy 
hinged.*  It  was,  says  the  same  high  authority,  one  of  the  most  con- 
summate juridical  arguments  which  was  ever  pronounced  in  the  halls 
of  legislation ;  and,  like  Lord  Mansfield's  answe*  to  the  Prussian 
Memorial,  it  was  rtponse  sans  repliquc, — an  answer  so  irresistible  that 

*  This  celebrated  speech  was  written  out  by  Marshall,  and  published  in  full. 
It  may  be  found  in  a  note  to  Bee's  Reports,  2fiC  ;  also  in  Appendix  to  the  fifth 
volume  of  Wheaton's  Reports,  and  in  Whartou's  State  Trials,  p.  443. 


344  LIVES  OF  THE  CHIEF-JUSTICES. 

it  admitted  of  no  reply.*  A  careful  perusal  of  this  celebrated  speech 
will  satisfy  the  professional  reader  that  this  warm  eulogy  is  not  exag- 
gerated, especially  if  we  regard  the  speech  in  the  light  of  a  great 
legal  and  constitutional  argument.  The  lucid  order  of  its  topics,  the 
profoundness  of  its  logic,  the  extent  of  its  research,  and  the  force  of 
its  illustration,  are  indeed  unsurpassed,  nay,  unrivalled.  But  it  is  as  a 
constitutional  and  legal  argument  alone  that  it  is  calculated  to  strike 
the  attention  of  the  reader.  It  has  no  pretensions  to  eloquence  or  the 
graces  of  rhetoric — there  are  no  striking  antitheses  to  be  found  in  it, 
no  bold  figures,  no  rich  flow  of  diction,  no  copious  fullness  of  expres- 
sion, no  play  of  the  fancy,  no  warm  gush  of  the  imagination  and  the 
feelings.  All  is  an  effort  of  pure  ratiocination — of  calm,  intellectual 
strength — clear,  cold,  transparent  as  the  limpid  ice  beneath  which  glide 
swiftly  and  silently  the  deep  and  unfathomable  waters  of  the  stream. 
In  the  simplicity,  and  order,  and  strength  of  its  argument,  it  is  not  un- 
like some  of  those  judicial  opinions  which  its  author  subsequently  pro- 
nounced from  the  bench  ;  indeed,  it  appears  to  be  precisely  such  au 
argument  as  the  Chief-Justice  ten  years  later  would  have  written  out 
after  the  topic  had  been  thoroughly  discussed  before  him  and  illus- 
trated by  a  full  display  of  forensic  learning  and  eloquence.  Accord- 
ing to  the  tradition  of  the  time,  it  is  said,  that  a  celebrated  statesman, 
then  in  Congress,  being  requested  to  answer  this  speech,  excused  him- 
self on  the  ground  that  he  deemed  it  unanswerable.f  It  appears  from 
the  report  of  the  debate  that  Mr.  Nicholas,  of  Virginia,  was  some- 
what bolder,  for  he  certainly  did  reply  to  Marshall,  as  the  record 
shows.  The  question  was  then  taken,  and  the  resolutions  lost  by  a 
majority  of  twenty-six  ;  some  of  the  opposition  members  voting  against 
them. 

This  effort  of  Marshall  is  perhaps  the  best  specimen  that  remains 
of  his  style  and  manner  both  of  forensic  and  legislative  speaking. 
From  it  we  may  infer  that  he  never  was  what  may  be  called  a  great 
orator.  The  matter  rather  than  the  manner,  the  substance,  and  not 
the  graces  of  oratory  was  the  thing  which  he  mainly  cultivated.  He 

*  Even  Jefferson,  so  sparing  in  praise  to  political  opponents,  admits  the  suc- 
cess of  Marshall's  effort.  In  a  letter  to  Madison  he  says :  "  Livingston,  Nicholas, 
and  Gallatin  distinguished  themselves  on  one  side,  and  Marshall  greatly  on  the 
other."— Jefferson's  Correspondence,  Vol.  IH.  p.  434. 

t  26  Vol.  North  American  Review,  p.  31. 


JOHN  MARSHALL.  34.5 

had  much  of  the  severe  and  unadorned  simplicity  of  style  which  char- 
acterizes the  speeches  of  Calhoun,  with  very  little  of  the  copious  and 
Ciceronian  flow  of  Clay,  and  none  of  that  intense  power  of  language, 
that  gorgeousness  of  expression  in  which  Webster  was  sometimes 
accustomed  to  clothe  a  great  thought,  throwing  it  out  in  one  of  those 
magnificent  sentences,  which,  once  heard,  haunt  the  mind  for  years. 
Of  his  manner  of  elocution,  and  his  powers  as  a  public  speaker,  Judge 
Story  says  :  "  In  regard  to  eloquence,  if  by  that  be  merely  meant  an 
ornamental  diction,  splendor  of  style,  impassioned  delivery,  and  fine 
flourishes  of  rhetoric,  it  could  scarcely  be  said  to  belong  to  his 
forensic  addresses.  ***** 

But  if  by  eloquence  be  meant  the  power  to  address  other  men's 
minds  in  language  expressive  and  luminous ;  to  present  the  proper 
topics  of  argument  in  their  just  order  and  fullness ;  to  convince  the 
understanding  by  earnest  and  sententious  appeals  ;  and,  by  the  force 
of  reasoning,  to  disarm  prejudices,  to  subdue  passions,  and  to  dissipate 
popular  delusions  ;  if  these  be  the  attributes  of  eloquence,  then,  indeed, 
few  men  might  more  justly  aspire  to  such  a  distinction.  I  would  not 
claim  for  him  that  he  possessed  the  power  to  seduce  men's  understand- 
ings by  persuasive  insinuations  or  honied  accents  ;  but  I  affirm  that 
he  withdrew  their  understandings  from  the  potency  of  such  artifices, 
so  that  they  fell  lifeless  at  his  feet ;  telumque  imbelle  sine  idu.  To  him 
may  unhesitatingly  be  applied  the  language  of  Cicero  pronounced  upon 
one  of  the  greatest  lawyers  of  Rome,  that  he  possessed  a  mastery  of 
the  highest  art  of  oratory ;  the  art  of  analyzing,  defining,  and  illus- 
trating a  subject  ;  separating  the  true  from  the  false  ;  and  deducing 
from  each  other  the  appropriate  consequences."  Judge  Story,  though 
he  had  never  heard  Marshall  at  the  bar,  adds  that  there  were  times  in 
his  private  conversation  and  conferences,  "  in  which  he  has  been  roused 
by  the  interest  of  the  subject  to  such  a  glowing  strain  of  animated 
reasoning,  that  I  am  convinced  that  he  was  no  stranger  to  appeals  to 
the  heart  ;  and  that  when  he  chose  he  could  call  up  from  the  very 
depths  of  the  soul  its  most  powerful  feelings." 

Congress  adjourned  on  the  14th  day  of  May,  bringing  to  a  close 
Marshall's  first  and  only  term  of  service  in  the  National  Legislature. 
Other  and  still  more  responsible  duties  now  sought  him  out  and  de- 


346  LIVES  OF  THE  CHIEIXTUSTICES. 

mauded  his  attention.  As  a  friend  to  the  administration,  he  was 
called  upon  to  give  it  the  most  signal  proofs  of  his  confidence.  The 
breach  between  President  Adams  and  his  "  disjointed  cabinet,"  as  it 
was  called  in  the  newspapers  of  the  day,  had  become  irreconcilable,* 
and  immediately  on  the  adjournment  of  Congress  the  explosion  came. 
McHenry,  the  Secretary  of  "War,  was  the  first  to  retire.  His  place 
was  immediately  filled  by  the  appointment  of  Marshall.  This  appoint- 
ment was  entirely  unexpected  ;  the  first  intimation  received  of  it  being 
at  the  Secretary's  office,  where  he  happened  on  a  matter  of  business 
preparatory  to  returning  to  Virginia.  He  immediately  wrote  to  Mr. 
Adams  requesting  him  to  withdraw  the  nomination ;  but  before  any 
action  was  taken  the  President's  rupture  with  Col.  Pickering  resulted 
in  the  dismissal  of  that  gentleman,  and  Marshall  was  appointed  Secre- 
tary of  State,  Mr.  Dexter  being  placed  at  the  head  of  the  War  depart- 
ment. 

Wolcott  asserts  that  these  removals  and  appointments  were  made 
by  Mr.  Adams  in  a  moment  of  passion  ;  that  the  Secretaries  were  dis- 
missed without  any  previous  designation  of  their  successors  ;  and  that 
it  was  for  a  long  time  uncertain  how  the  vacancies  would  be  filled. 
He  was  of  the  opinion  that  Marshall,  having  declined  the  office  of 
Secretary  of  War,  would  decline  also  that  of  Secretary  of  State,  but 
in  this  he  proved  to  be  mistaken.  As  a  consistent  friend  of  the  ad- 
ministration, particularly  in  its  foreign  policy,  which  the  "  British  fac- 
tion," as  Mr.  Adams  termed  it,  so  warmly  condemned,  he  did  not  feel 
at  liberty  to  decline  the  appointment,  and  there  is  no  evidence  that  he 
did  not  accept  it  cheerfully  and  readily.  As  to  the  dismissal  of  the 
Secretaries,  whether  done  in  a  moment  of  passion  or  not,  it  can 
scarcely  be  denied  that  the  step  was  both  justifiable  and  necessary. 
No  President,  least  of  all  one  made  of  such  stern  stuff  as  John  Adams, 
could  be  expected  to  keep  in  his  Cabinet,  as  his  confidential  advisers, 

*  Secretary  Wolcott,  in  a  letter  written  at  the  commencement  of  the  last  session, 
says  with  much  bitterness :  "  The  President's  mind  is  in  a  state  which  renders  it 
difficult  to  determine  what  prudence  and  duty  require  from  those  about  him.  He 
considers  Col.  Pickering,  Mr.  McHenry  and  myself  as  his  enemies ;  his  resent- 
ments against  Gen.  Hamilton  are  excessive  ;  he  declares  his  belief  of  the  existence 
of  a  British  faction  in  the  United  States." 

The  reader  is  referred  to  what  was  said  ante,  page  274,  in  regard  to  the  origin  of 
this  misunderstanding  between  the  President  and  his  Cabinet. 


JOHN  MARSHALL.  34.7 

gentlemen  whom  he  knew  to  be  personally  hostile  to  his  administra- 
tion. Whatever,  therefore,  might  be  the  grumblings  of  the  discarded 
Secretaries,  this  step  of  the  President  cannot  but  be  regarded  as  judi- 
cious and  wise.  Wolcott  thought,  too,  that  General  Marshall  would 
"  find  himself  out  of  his  proper  element "  in  his  new  office.*  In  this, 
too,  he  proved  to  be  mistaken.  No  man  was  more  familiar  with,  and 
thoroughly  master  of,  the  whole  question  of  our  foreign  relations;  and 
these  he  managed  during  the  year  of  his  administration  of  the  State 
department,  with  signal  ability  and  success.  His  conduct  in  this 
respect  gave  the  most  entire  satisfaction,  not  to  the  President  only, 
but  to  the  whole  American  people.  Mr.  Adams,  in  his  celebrated  Cun- 
ningham letters,  though  so  far  carried  away  by  his  private  feelings  as 
to  hint  the  personal  incompetency  of  Col.  Pickering,  pays  a  deserved 
tribute  to  General  Marshall.  "  Suppose  I  should  tell  you,"  he  says, 
"  that  the  studies  of  his  (Pickering's)  early  youth,  and  of  his  riper 
years,  had  not  been  competent  to  the  profound  investigations  which 
his  office  required.  We  had  discussions  of  great  importance  with 
France,  England,  and  Spain,  especially  the  two  former,  involving  ques- 
tions respecting  neutral  rights,  respecting  British  and  tory  claims,  of 
ante-revolutionary  debts.  I  could  get  nothing  done  as  I  would  have 
it.  My  new  minister,  Marshall,  did  all  to  my  entire  satisfaction." 
The  biographer  of  Wolcott  explains  this  in  a  manner  far  from  compli- 
mentary to  Mr.  Adams.  With  regard  to  Marshall's  doing  every  thing 
to  the  President's  satisfaction,  he  remarks  with  no  little  asperity — 
"  Every  one  who  knew  that  great  man,  (Marshall,)  knew  that  he  pos- 
sessed, to  an  extraordinary  degree,  the  faculty  of  putting  his  own 
ideas  into  the  minds  of  others,  unconsciously  to  them.  The  secret  of 
Mr.  Adams'  satisfaction  was,  that  he  obeyed  his  Secretary  of  State 
without  being  conscious  of  it."  f  But  this  we  are  led  to  believe  is 
also  a  calumny. 

I  shall  not  dwell  upon  the  party  discussions  and  the  political  history 
of  this  period,  which,  however  interesting  in  itself,  will  shed  no  new 
light  on  the  character  of  Chief- Justice  Marshall.  It  is  sufficient  to 
say  that  he  continued  his  laborious  and  useful  services  as  the  head  of 
the  State  department,  down  to  the  close  of  Mr.  Adams'  adroiuistra- 

*  Letter  to  Fisher  Ames,  August  10th,  1800.    2  Gibb's  Wolcott,  402. 

|  2  Gibbs'  Wolcott,  349,  350. 


348  LIVES  OF    THE  CHIEF-JUSTICES. 

tion,  on  the  4th  of  March,  1801,  although  in  the  mean  time  appointed 
to  that  high  judicial  station  which  he  so  long  adorned.  It  may  also 
be  mentioned,  as  a  fact  highly  honorable  to  the  character  of  Marshall, 
and  as  exhibiting  alike  the  elevation  of  his  mind  and  the  moderation 
of  his  sentiments,  that  though  warmly  attached  to  President  Adams, 
and  though  the  circumstances  of  his  appointment  successively  to  the 
War  and  State  departments  were  calculated  to  excite  unpleasant  feel- 
ings between  him  and  his  predecessors,  yet  in  fact  they  did  not  awaken 
the  least  degree  of  political  rivalry  or  personal  resentment.  On  the 
contrary,  he  soon  found  himself  upon  the  most  friendly  and  cordial 
terms  with  his  predecessors,  and  in  the  enjoyment  of  the  unlimited 
confidence  of  the  public.* 

Upon  the  resignation  of  Chief-Justice  Ellsworth,  much  anxiety  was 
manifested  respecting  his  successor.  It  was  supposed  by  many  that 
Judge  Paterson,  then  one  of  the  Associate-Justices  of  the  Supreme 
Court,  would  be  appointed,  by  others  the  name  of  General  Pinckney 
was  mentioned.  Marshall  himself,  on  being  consulted  by  the  Presi- 
dent, unhesitatingly  recommended  Judge  Paterson.  But  Mr.  Adams 
objected  to  this  nomination,  assigning  as  a  reason  that  he  could  not 
make  it  without  wounding  the  feelings  of  Judge  Gushing,  who  was  an 
old  friend  and  the  senior  Judge  on  the  bench.f  Thereupon  he  ap- 
pointed Mr.  Jay,  who  declined.  As  soon  as  this  fact  was  known  the 
President  promptly  sent  in  the  name  of  Marshall  to  the  Senate,  who 
was  unanimously  confirmed,  and  on  the  31st  January,  1801,  commis- 
sioned as  Chief-Justice  of  the  United  States.  The  appointment  was 
not  made,  it  appears,  without  some  cavilling  from  those  peculiar 
friends  of  the  President,  who  manifested  so  great  a  proclivity  to  cen- 
Bure  every  act  of  his  administration.  The  Ex-Secretary  of  War, 
McHenry,  writes  with  much  asperity  to  Wolcott  :  "  Mr.  Adams,  it 
strikes  me,  has  fcommitted  another  blunder,  but,  it  is  true,  one  not  alto- 

*  "  I  have  often  listened,"  says  Judge  Story,  "  to  the  spontaneous  praise  be- 
stowed on  Mr.  Marshall  by  Col.  Pickering,  in  his  own  peculiar  circle  of  friends, 
with  unmixed  delight.  It  was  full,  glowing  and  affecting.  It  was  a  tribute  from 
one  of  such  sincerity  of  thought  and  purpose,  that  praise,  even  when  best  deserved, 
came  from  his  lips  with  a  studied  caution  of  language.  His  conversation,  always 
instructive,  on  these  occasions  rose  into  eloquence,  beautiful,  nay  touching,  with 
a  moral  sublimity." 

t  26  Vol.  North  American  Review,  32. 


JOHN    MARSHALL.  34.9 

getber  so  rare.  I  mean  in  rewarding  dear  friends,  and  in  neglecting 
old  ones.  Here  it  was  expected  by  every  body  that  he  would  have 
named  Mr.  Paterson  to  the  vacant  seat  on  the  bench,  except  by 

Mr. ,  who  thought  that  he  should  have  been  appointed,  and  by 

me,  who  thought  the  President  should  have  appointed  himself."  *  The 
"blunder"  of  Mr.  Adams  proved  to  be  a  most  fortunate  one  for  the 
country.  Indeed,  reflecting  men  of  all  parties  since  that  day  have 
been  inclined  to  regard  this  "blunder"  as  an  act  of  rare  sagacity 
and  intuitive  discernment  of  character.  He  would  be  a  bold  man 
who  should  now  assert  that  from  among  all  the  able  and  eminent  men 
who  then  sustained  the  administration,  or  belonged  to  either  wing  of  the 
Federal  party,  (and  none  other  could  of  course  have  expected  the  ap- 
pointment,) the  President  might  have  made  a  wiser  and  more  judicious 
selection,  or  one  which  would  have  shed  greater  lustre  upon  the  judi- 
cial history  of  the  country.  It  was  something  of  this  feeling,  which 
after  the  experience  of  more  than  a  quarter  of  a  century  had  demon- 
strated the  wisdom  of  the  choice,  prompted  the  words  of  President 
John  Q.  Adams,  who  on  enclosing  a  judicial  commission  to  a  gentle- 
man of  exalted  professional  reputation,  happily  alludes  to  the  appoint- 
ment by  his  father  of  Chief-Justice  Marshall :  "  If  neither  of  us,"  he 
remarks,  "  had  ever  done  any  thing  else  to  deserve  the  approbation  of 
our  country,  and  of  posterity,  I  would  proudly  claim  it  of  both,  for 
these  acts,  for  rny  father  and  myself."  f 

Chief-Justice  Marshall  took  his  seat  on  the  bench  of  the  Supreme 
Court  at  the  February  term,  1801.  His  associates  were  WILLIAM 
GUSHING,  of  Massachusetts,  the  only  remaining  member  of  the  Court' 
originally  appointed  by  Washington ;  WILLIAM  PATERSON,  of  New 
Jersey,  a  lawyer  of  learning  and  ability,  and  a  statesman  of  large  ex- 
perience ;  SAMUEL  CHASE,  of  Maryland,  undoubtedly  the  most  vigor- 
ous and  original  intellect  next  to  that  of  Marshall  on  the  bench  ; 
BUSHROD  WASHINGTON,  of  Virginia,  trained  in  the  same  school  with 
the  Chief-Justice,  and  bringing  with  him  from  the  bar  of  his  native 
State  a  reputation  as  well  earned  as  it  was  afterwards  nobly  sustained ; 
and  ALFRED  MOORE,  of  North  Carolina,!  then  recently  appointed  to 
fill  the  vacancy  occasioned  by  the  death  of  the  lamented  Iredell. 

*  2  Gibbs'  Wolcott,  464.  t  Judge  Story's  Sketch  of  Marshall. 

J  Very  little  appears  to  be  known  of  this  gentleman.    He  was  appointed  by 


350  LIVES  OF  THE  CHIEF-JUSTICES. 

Such  was  the  Supreme  Court  of  the  United  States  at  the  time 
Marshall  began  to  preside  in  it  in  the  winter  of  1801.  Its  sessions 
were  then,  for  the  first,  held  at  the  new  city  of  Washington,  to  which 
the  seat  of  government  had  been  removed  the  previous  summer. 
Most  of  the  old  members  of  the  bar  who  figured  prominently  as  advo- 
cates at  the  organization  of  the  Court  were  still  in  active  practice. 
The  younger  race  of  lawyers,  who  a  few  years  later  composed  that 
brilliant  galaxy  which  centered  around  the  bar  of  the  Supreme  Court, 
such  as  Pinkney,  Wirt,  Jones,  Hopkinson,  Emmett,  Webster,  and 
Clay,  had  not  yet  entered  upon  this  splendid  forum  of  intellectual 
effort.  Their  senior  brethren — the  veterans  of  the  bar — the  men  who 
thronged  the  precincts  of  the  Court  in  Jay's  and  Rutledge's  time — 
Tilghman,  Dexter,  Lewis,  Rawle,  Dallas,  Martin,  Dupouceau,  Inger- 
soll — few  of  whom  had  yet  begun  to  lag  "  superfluous  on  the  stage," 
were  the  counsel  mostly  engaged  in  the  earlier  causes  argued  before 
Chief-Justice  Marshall. 

Before  Marshall  came  to  the  bench  it  had  been  made  a  question 
whether  the  Judges  could  be  lawfully  required,  under  their  commis- 
sions, to  hold  the  Circuit  Court.  The  question  was  disposed  of  for 
the  time  by  the  new  bill  for  "  the  more  convenient  organization  of  the 
Courts  of  the  United  States,"  passed  among  the  last  acts  of  President 
Adams'  administration.*  This  bill  relieved  the  Judges  from  Circuit 
duty  entirely,  and  confined  them  to  attendance  at  the  sessions  of  the 
Supreme  Court,  two  of  which  were  required  to  be  held  annually  at 
the  seat  of  government.  The  bill  had  been  in  operation  but  little 
more  than  a  year  when  it  was  repealed,  under  Mr.  Jefferson's  adminis- 
tration, and  the  old  circuit  system  restored.f  The  repeal  of  the  act 
having  assumed  a  political  aspect,  an  animated  and  powerful  debate 
sprung  up  in  the  House  of  Representatives,  in  which  the  opponents 
of  the  repeal  maintained  with  persevering  boldness  and  vigor  that  by 
the  Constitution  Congress  could  not  require  the  Judges  of  the  Supreme 

President  Adams  toward  the  close  of  the  year  1799,"tbough  the  records  of  the 
State  department  do  not  show  the  date  of  his  commission.  One  or  two  of  his 
opinions  are  to  be  found  in  the  reports.  He  remained  but  a  few  years  on  the 
bench,  and  resigning,  was  succeeded,  March  26,  1804,  by  William  Johnson,  of 
South  Carolina. 

*  Act  of  February,  13th,  1801. 

t  Act  of  April  29th,  1802. 


JOHN  MARSHALL.  35^ 

Court  to  sit  at  the  Circuit.  This,  also,  was  Marshall's  opinion.  On 
the  passage  of  the  act  of  repeal,  however,  instead  of  disregarding 
the  act  entirely,  he  adopted  a  course  which,  while  it  perfectly  vindi- 
cates the  independence  of  his  character,  exhibits  at  the  same  time  the 
extreme  caution  of  his  temper.  He  wrote,  it  is  said,*  a  circular  letter 
to  all  the  other  Judges  of  the  Supreme  Court,  stating  that  upon  a  full 
examination  of  the  subject,  he  had  come  to  the  conclusion  that  the 
Judges  of  the  Supreme  Court  could  not  constitutionally  be  required 
to  hold  any  other  sessions  than  those  of  the  Supreme  Court,  or  per- 
form any  other  judicial  duty  ;  and  he  accordingly  stated  to  his  breth- 
ren, that  if  they  concurred  in  this  opinion,  he  would  decline  to  sit  in 
the  Circuit  Court  and  risk  the  consequences.  The  answer  returned 
by  his  brethren  was  that  they  agreed  with  him  in  opinion  ;  but  con- 
sidering the  question  had  been  settled  to  the  contrary  by  the  acquies- 
cence of  the  Judges  in  going  the  Circuit  prior  to  1801  they  advised 
that  it  should  not  now  be  disturbed,  but  should  be  considered  for  all 
practical  purposes  as  finally  put  to  rest.  The  Chief-Justice  thereupon 
proceeded  to  hold  the  Circuit  Court  for  the  Virginia  district.  The 
question  of  jurisdiction,  and  his  right  to%  sit  as  Circuit  Judge  without 
a  separate  commission  for  that  purpose,  was  raised,  and  decided  by 
him  in  the  manner  indicated  by  his  associates.  The  case  came  up  for 
review  to  the  Supreme  Court,  and  the  decision,  in  which  Marshall  de- 
clined taking  part,  was  affirmed  ;  on  the  sole  ground,  as  stated  by  Mr. 
Justice  Paterson  who  delivered  the  opinion  of  the  Court,  that  prac- 
tice and  acquiescence,  for  a  period  of  several  years,  commencing  with 
the  organization  of  the  judicial  system,  had  fixed  the  construction, 
and  that  this  cotemporary  and  practical  exposition  was  too  strong  to 
be  shaken  or  control  led.  f 

I  have  elsewhere  alluded  to  the  immense  mass  of  labors  performed 
by  the  Chief-Justice,  during  his  service  on  the  bench  of  the  Supreme 
Court — extending  through  a  continuous  period  of  nearly  thirty-five 
years — and  to  the  number,  extent  and  variety  of  his  decisions.  Tliese 
decisions  will  be  found  mostly  collected  in  the  nine  volumes  of  Cranch's 
Reports  of  the  Supreme  Court,  the  twelve  volumes  of  Wheaton,  and 
the  first  nine  volumes  of  Peters  ;  and  his  decisions  at  Circuit  in  the 

*  3  New  York  Review,  347. 
t  Stuart  vs.  Laird,  1  Cranch  Reports,  299. 


352  LIVES  OF   THE  CHIEF-JUSTICES. 

two  volumes  of  Brockenbrough.  From  this  mass  of  material  it  is  of 
course  impossible  to  do  more  than  call  the  reader's  attention  to  a  few 
selections  of  the  most  important  and  prominent  cases — such  as  cases 
of  prize  and  admiralty,  cases  turning  upon  questions  of  great  public  or 
national  interest,  and,  above  all,  those  involving  principles  of  constitu- 
tional law.  In  regard  to  the  latter  class  of  cases  especially  it  may 
with  truth  be  said  that  the  labors  of  Chief-Justice  Marshall  have  raised 
an  enduring,  an  imperishable  monument  to  his  fame.  No  jurist,  living 
or  dead,  can  point  to  a  nobler  or  a  prouder  record  ;  and  the  remark  of 
that  one  of  his  associates  who  knew  him  most  intimately,  and  who  so 
justly  appreciated  the  value  of  his  friendship,*  is  nothing  but  the  lan- 
guage of  sober  truth, — that  if  all  others  of  his  juridical  arguments  had 
perished,  his  luminous  judgments,  on  these  occasions,  would  have  given 
an  enviable  immortality  to  his  name.  From  the  same  excellent 
authority,  we  gain  something  of  an  idea  of  the  absolute  superiority, 
and  the  controlling  power  of  Marshall's  mind  in  all  these  deliberations 
and  decisions  upon  questions  of  Constitutional  law.  "Though  we 
would  not  be  unjust,"  he  says,  "  to  those  learned  gentlemen  who  have 
from  time  to  time  been  his  associates  on  the  bench,  we  are  quite  sure, 
that  they  would  be  ready  to  admit,  what  the  public  universally  believed, 
that  his  master  mind  has  presided  in  their  deliberations,  and  given  to 
the  results  a  cogency  of  reasoning,  a  depth  of  remark,  a  persuasiveness 
of  argument,  a  clearness  and  elaboration  of  illustration,  and  an  eleva- 
tion and  comprehensiveness  of  conclusion,  to  which  none  others  offer 
a  parallel.  Few  decisions  upon  constitutional  questions  have  been 
made,  in  which  he  has  not  delivered  the  opinion  of  the  Court ;  and  in 
these  few,  the  duty  devolved  upon  others  to  their  own  regret,  either 
because  he  did  not  sit  in  the  cause,  or,  from  motives  of  delicacy,  ab- 
stained from  taking  an  active  part."  f 

One  of  the  most  important  of  these  cases  of  constitutional  construc- 
tion, as  it  is  the  earliest  in  point  of  time,  is  the  case  of  Marbury  vs. 
Ma*son,J  argued  and  decided  at  the  term  of  the  Court  held  in  Feb- 
ruary, 1803.  In  pronouncing  the  opinion  of  the  Court  in  this  some- 

*  "  There  is  no  one  on  earth,"  says  Story,  in  a  letter  to  Miss  Martineau,  "  whose 
friendship  I  value  more  than  his ;  there  is  no  one  whose  praise  is  to  me  so  touch- 
ing and  so  deer." 

t  26  North  American  Review,  36.  J  1  Cranch  Report*,  137. 


JOHN  MARSHALL.  353 

what  noted  case,  the  Chief-Justice  clearly  and  distinctly  lays  down, 
and  sustains  by  a  chain  of  irresistible  logic,  what  has  ever  since  been 
regarded  as  the  fundamental  principle,  the  very  sheet  anchor  of  the 
Constitution,  namely,  that  it  is  the  right  and  the  duty  of  the  judicial 
department  to  determine  the  constitutionality  of  a  legislative  act,  and 
if  such  act  be  found  repugnant  to  the  provisions  of  the  Constitution, 
to  declare  it  null  and  void. 

This  may  be  considered  as  the  first  authoritative  exposition  of  the 
Court  on  this  subject.  The  principle  had,  indeed,  been  asserted  at  an 
earlier  period  by  Judge  Paterson  at  the  Pennsylvania  Circuit  in  the 
case  of  Home's  Lessees  vs.  Dorrance  ;*  but  it  does  not  appear  to  have 
been  considered  by  the  professional  mind  as  settled.  In  the  subse- 
quent case  of  Calder  et  ux.  vs.  Bull,f  it  was  incidentally  drawn  into 
the  discussion,  and  while  Judge  Iredell  intimated  the  opinion  that  if 
an  act  of  Congress,  or  of  the  Legislature  of  a  State  violated  a  provi- 
sion of  the  Federal  Constitution,  such  act  was  unquestionably  void, 
and  the  Court,  in  a  very  clear  case,  had  authority  so  to  declare  it ; 
yet,  on  the  other  hand,  Judge  Chase  avoided  expressing  his  views  on 
the  subject,  remarking  :  "  Without  giving  an  opinion,  at  this  time, 
whether  the  Court  has  jurisdiction  to  decide  that  any  law  made  by 
Congress  is  void,  I  am  fully  satisfied  that  this  Court  has  no  jurisdic- 
tion to  determine  that  any  law  of  any  State  Legislature  contrary  to 
the  Constitution  of  such  State  is  void."! 

*  2  Dallas  Reports,  304. 

t  3  Dallas  Reports,  386. 

t  This  early  view  of  Judge  Chase,  that  the  Supreme  Court  cannot  declare  a 
State  law  void  as  being  repugnant  to  a  State  Constitution  is  sustained  by  subse- 
quent decisions.  "  The  Court,"  says  Judge  Baldwin,  delivering  the  judgment  in 
Jackson  vs.  Lamphire,  3  Peters,  280,  "  has  no  authority  on  a  writ  of  error  to  a 
State  Court  to  declare  a  State  law  void  on  account  of  its  collision  with  a  State 
Constitution,  it  not  being  a  case  embraced  within  the  judiciary  act  which  alone 
gives  power  to  issue  a  writ  of  error  to  a  State  Court."  A  similar  opinion  is  ex- 
pressed, as  the  judgment  of  the  Court,  by  Mr.  Justice  Washington  in  Satterlee  »». 
Matthewson,  2  Peters,  413 ;  though,  at  the  same  time,  he  does  not  deny  that  a 
Circuit  Court  of  the  United  States,  sitting  to  administer  the  laws  of-a  State,  may 
give  to  the  Constitution  of  that  State  a  paramount  authority  over  a  legislative 
act  passed  in  violation  of  it.  But  this,  it  seems,  is  only  in  case  the  State  tribunals 
have  not  themselves  passed  upon  the  constitutionality  of  the  law.  When  they 
have  done  so,  a  rule  of  decision  is  furnished  to  which  the  Federal  tribunals  will 
23 


354:  LIVES  OF   THE  CHIEF-JUSTICES. 

The  same  judge  in  a  subsequent  case  *  had  gone  so  far  as  to  inti- 
mate that  "  the  general  principles  contained  in  the  Constitution  are 
not  to  be  regarded  as  rules  to  fetter  and  control ;  but  as  matter 
merely  declaratory  and  directory ;"  and  in  the  same  opinion  he  adds, 
that  even  though  it  might  be  alleged  that  "  all  acts  of  the  Legislature 
in  direct  opposition  to  the  provisions  Of  the  Constitution  would  be 
void  ;  yet  it  still  remains  a  question  where  the  power  resides  to  declare 
them  void." 

This  grave  question,  lying  at  the  very  root  of  the  power  and  inde- 
pendence of  the  Federal  judiciary,  met  the  Chief-Justice  in  the  case  of 
Marbury  vs.  Madison,  and  its  consideration  forms  no  inconsiderable 
portion  of  one  of  his  earliest  constitutional  decisions.  A  more  mo- 
mentous question  never  engaged  the  attention  of  that,  or  any  other, 
tribunal ;  and  its  final  decision  was  such  as  to  satisfy  the  bench,  the 
bar,  and  the  country,  and  to  put  the  question  at  rest  then  and  for 
ever.  A  brief  notice  of  the  case  is  all  that  will  be  given,  leaving  the 
professional  reader  to  consult  it  more  fully  in  the  report. 

Just  before  Mr.  Adams  retired  from  office  he  appointed  some 
Federal  justices  of  the  peace  for  Alexandria,  in  the  District  of  Colum- 
bia. The  commissions  had  been  signed  and  sealed,  but  not  delivered. 
Jefferson  succeeding  to  the  presidency,  found  these  commissions  on  the 
table  of  the  department  of  state  and  forbade  their  delivery.  Mar- 
bury,  named  in  one  of  these  commissions,  applied  to  the  Supreme 
Court  by  his  counsel,  Mr.  Lee,  of  Virginia,  for  a  mandamus  to  the 
Secretary  of  State  (Mr.  Madison)  to  deliver  the  commission  intended 
for  him.  « 

In  the  opinion  of  the  Chief-Justice  in  this  interesting  case,  he  dis- 
cusses in  their  order  the  following  propositions,  and  arrives  at  these 
conclusions  : — 

adhere.  Though  the  Supreme  Court  had  repeatedly  declared  that  it  would  con- 
form to  the  construction  of  the  statutes  of  a  State  made  by  its  own  tribunals ; 
yet  in  the  case  of  Bank  of  Hamilton  vs.  Dudley's  Lessees,  2  Peters,  492,  a  distinc- 
tion was  attempted  to  be  made  by  counsel,  between  the  exclusive  power  of  the 
State  Courts  to  construe  legislative  acts,  and  the  power  to  construe  the  State 
Constitution  by  giving  effect  to  an  unconstitutional  law.  But  .the  Chief-Justice 
refused  to  recognize  such  distinction.  "  The  judicial  department  of  every  goAtern- 
ment,"  he  remarks,  "  is  the  rightful  expositor  of  its  laws ;  and  emphatically  of 
its  supreme  law." 
*  Cooper  vs.  Telfair,  February  Term,  1800.  4  Dallas  Reports,  14. 


JOHN  MARSHALL.  355 

1st.  That  the  applicant  has  a  right  to  the  commission  he  demands. 

2d.  That  this  right  having  been  violated,  the  laws  of  his  country 
afford  him  a  remedy. 

3d.  That  the  case  in  its  nature  is  one  for  a  mandamus. 

4th.  But,  that  being  an  original  process,  the  Supreme  Court  has  no 
jurisdiction  to  issue  it,  and  the  act  of  Congress  conferring  such  juris- 
diction', not  being  authorized  by  the  Constitution,  is  null  and  void.* 

The  application  was  accordingly  denied. 

It  will  be  observed  that  the  really  important  part  of  the  decision  is 
in  regard  to  the  constitutionality  of  the  act  of  Congress  and  the  power 
of  the  Court  over  it.  It  in  reality  involved  the  momentous  question 
whether  the  Constitution  was  to  be  regarded  as  an  absolute  limit  to 

*  Mr.  Jefferson  complained  with  some  degree  of  asperity  of  the  decision  by  the 
Chief-Justice  of  the  first  three  points  above  mentioned. 

The  cause  of  his  complaint  seems  to  have  been,  that  the  Chief-Justice  really 
began  at  the  wrong  end  of  the  argument.  He  held  that  it  would  have  been  suffi- 
cient to  determine  the  question  of  jurisdiction  alone,  without  travelling  out  of  the 
case  to  determine  what  the  law  would  have  been,  if  the  court  had  jurisdiction. 
Many  years  afterwards  Mr.  Jefferson  alludes  to  this  "  very  irregular  and  very 
censurable  practice,"  as  he  terms  it,  in  a  letter  to  Judge  Johnson  touching  this 
very  case  : — "  The  court  determined  at  once,"  he  says,  "  that,  being  an  original 
process,  they  had  no  cognizance  of  it ;  and  there  the  question  before  them  was 
ended.  But  the  Chief-Justice  went  on  to  lay  down  what  the  law  would  be  had 
they  jurisdiction  of  the  case ;  to  wit,  that  they  should  command  the  delivery. 
The  object  was  clearly  to  instruct  any  other  court  having  jurisdiction  what  they 
should  do  if  Marbury  should  apply  to  them.  Besides  the  impropriety  of  this 
gratuitous  inference,  could  anything  exceed  the  perversion  of  the  law  ?" — See 
Jefferson's  Correspondence,  Vol.  HI.  p.  372. 

I  do  not  regard  these  inferences  of  Mr.  Jefferson  as  entirely  just  toward  Mar- 
shall, though  there  may  be  great  reason  to  doubt  the  correctness  of  the  decision 
on  these  points.  Jefferson's  argument,  and  if  not  sound  and  conclusive,  it  is  cer- 
tainly plausible,  was,  that  the  commissions  being  in  the  executive  offices,  were 
deemed  to  be  in  the  binds  of  the  President,  and  like  a  deed  were  valid  and  opera- 
tive only  on  delivery.  The  decision  of  the  court  on  these  points  he  considered 
"  an  obiter  dissertation  of  the  Chief-Justice,"  and  as  such,  he  intimates,  that  he 
does  not  regard  it  as  furnishing  a  rule  to  govern  his  official  conduct.  The  reason 
of  Mr.  Jefferson's  refusing  to  deliver  these  commissions,  or  sanctioning  what  he 
calls  Mr.  Adams'  "  midnight  appointments,"  may  be  drawn  from  the  following 
hint,  contained  in  a  letter  to  Gerry :  "  Mr.  Adams'  last  appointments,  when  he 
know  he  was  naming  counsellors  and  aids  for  mo  and  not  for  lumself,  I  set  aside 
as  far  as  depends  on  me." — 3  Jefferson's  Correspondence,  434. 


356  LIVKS   OF   THE  CHIEF-JUSTICES. 

legislative  power  ;  or  whether  it  was,  as  Judge  Chase  had  pronounced  it, 
"declaratory  and  directory"  merely,  and,  as  in  England,  at  the  mercy 
of  the  legislature  ; — whether,  in  short,  the  judiciary  or  the  legislature 
were  to  be  the  interpreters  of  the  Constitution.*  "  The  powers  of  the 
Legislature,"  says  the  Chief-Justice,  "  are  denned  and  limited.  To 
what  purpose  are  powers  limited,  and  to  what  purpose  is  that  limita- 
tion committed  to  writing,  if  these  limits  may  at  any  time  be  passed 
by  those  intended  to  be  restrained  ?  The  distinction  between  a  gov- 
ernment of  limited  and  unlimited  powers  is  abolished,  if  these  limits  do 
not  confine  the  persons  on  whom  they  are  imposed.  It  is  a  proposi- 
tion too  plain  to  be  contested,  that  the  Constitution  controls  any  legis 
lative  act  repugnant  to  it,  or,  that  the  Legislature  may  alter  the  Con- 
stitution by  an  ordinary  act.  Between  these  alternatives  there  is  no 
middle  ground.  The  Constitution  is  either  a  superior,  paramount  law, 
unchangeable  by  ordinary  means,  or  it  is  on  a  level  with  ordinary 
legislative  acts,  and  like  other  acts,  is  alterable  when  the  Legislature 
shall  please  to  alter  it. 

'  If  the  former  part  of  the  alternative  be  true,  then  a  legislative  act 
contrary  to  the  Constitution  is  not  law :  if  the  latter  part  be  true, 
then  .written  constitutions  are  absurd  attempts,  on  the  part  of  the 
people,  to  limit  a  power  in  its  own  nature  illimitable. 

"  Certainly  all  those  who  have  framed  written  constitutions  contem- 
plate them  as  forming  the  fundamental  and  permanent  law  of  the 
nation,  and,  consequently,  the  theory  of  every  such  government  must 
be,  that  an  act  of  the  Legislature  repugnant  to  the  Constitution  is  void. 

"  This  theory  is  essentially  attached  to  a  written  constitution,  and 
is  consequently  to  be  considered  by  this  court  as  one  of  the  funda- 
mental principles  of  our  society.  It  is  not,  therefore,  to  be  lost  sight 
of  in  the  further  consideration  of  this  subject.". 

This  proposition  established,  the  conclusion  inevitably  and  irresistibly 
follows : 

"  It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 

*  It  involved,  perhaps,  to  some  extent  the  further  question  presented  by  Mr. 
Calhoun  in  his  celebrated  nullification  resolutions  of  1833,  namely,  whether  the 
general  government  is  "the  final  judge  of  the  powers  delegated  to  it,'-'  or.  whether. 
in  the  language  of  these  resolutions,  "  as  in  all  other  cases  of  compact  among 
sovereign  parties,  without  any  common  judge,  each  has  an  equal  right  to  judge 
for  itself,  as  well  of  the  infraction  as  of  the  mode  and  measure  of  redress." 


JOHN  MARSHALL.  357 

ment  to  say  what  the  law  is.  Those  who  apply  the  rule  to  particular 
cases  must  of  necessity  expound  and  interpret  that  rule.  If  two  laws 
conflict  with  each  other,  the  court  must  decide  on  the  operation  of 
each.  So  if  a  law  be  in  opposition  to  the  Constitution,"  &c.,  &c. 

These  conclusions  have  never  been  shaken,  or  even  doubted,  since 
that  day.  On  the  contrary,  they  have  been  affirmed  and  reiterated, 
and  the  power  of  the  court  extended  further ;  it  being  held  to  em- 
brace a  jurisdiction,  not  merely  to  declare  an  act  of  the  national  legis- 
lature void,  but  also  to  review,  on  appeal  from  the  highest  court  of 
law  or  equity  of  a  State,  and  declare  void  any  statute  of  such  State  on 
the  ground  of  its  being  repugnant  to  the  Constitution,  treaties,  or 
laws  of  the  United  States,  where  the  decision  of  the  State  court  has 
been  in  favor  of  the  validity  of  such  statute.* 

It  is  interesting  to  notice  the  fact  that  in  the  case  of  Marbury  vs. 
Madison — among  the  earliest  of  his  constitutional  decisions — the 
Chief  Justice  adheres  to  a  strict  construction.  Indeed,  he  might  be 
said,  in  regard  to  that  particular  case,  to  justify,  to  some  degree  at 
least,  the  suspicions  of  the  more  ardent  Federalists  as  expressed  by 
Wolcott,  that  he  would  "construe  the  Constitution  like  a  penal 
statute  ;"  that  is  to  say,  that  he  would  not  hesitate  to  declare  even  an 
act  of  Congress  void  unless  he  read  the  clear  warrant  for  it  in  the  very 
letter  of  the  Constitution — a  strictness,  however,  which,  it  must  be 
confessed,  he  did  not  on  all  occasions  so  rigidly  adhere  to. 

The  general  views  of  Marshall  in  the  exposition  of  Constitutional 
law  were  again  expressed  in  the  case  of  the  United  States  rs.  Fisher, 
argued  at  the  February  term  of  the  Supreme  Court,  in  ISOo.f  A 

*  See  the  elaborate  opinion  of  Mr.  Justice  Story  in  Martin,  heir-at-law  of  Fair- 
fax vs.  Hunter's  Lessees,  1  Wheaton,  304,  323,  352.  The  Virginia  Court  of 
Appeals  in  that  case  had  refused  obedience  to  the  mandate  of  the  Supreme  Court 
of  the  United  States,  which  reversed  the  judgment  of  the  State  Court,  alleging 
that  so  much  of  the  act  of  Congress  as  gave  the  Supreme  Court  appellate  jurisdic- 
tion over  a  State  tribunal  was  not  warranted  by  the  Constitution. 

The  constitutional  authority  of  the  Supreme  Court  over  the  State  tribunals  was 
again  largely  discussed,  and  reaffirmed  by  Chief-Justice  Marshall  in  the  case  of 
Cohens  vs.  Virginia,  6  Wheaton,  264,  which  will  be  hereafter  noticed.  That  case 
decided  that  this  appellate  jurisdiction  extended  to  a  suit  where  a  state  was  a 
party.  And  see  note,  ante,  page  353,  as  to  the  power  of  the  court  to  declare  an 
act  of  a  State  Legislature  void,  as  being  repugnant  to  a  State  Constitution. 

t  2  Cranch  Reports,  358. 


358  LIVES  OF  THE  CHIEF-JUSTICES. 

question  had  arisen  whether  the  act  of  Congress  giving  a  preference 
to  the  United  States  over  the  general  creditors  of  a  bankrupt  was 
warranted  by  the  Constitution.  In  the  consideration  of  this  question 
the  Chief-Justice  remarks  :  "  That  as  the  court  can  never  be  unmind- 
ful of  the  solemn  duty  imposed  on  the  judicial  department  when  a 
claim  is  supported  by  an  act  which  conflicts  with  the  Constitution,  so 
the  court  can  never  be  unmindful  of  its  duty  to  obey  laws  which  are 
authorized  by  that  instrument.  In  the  case  at  bar,  the  preference 
claimed  by  the  United  States  is  not  prohibited  ;  but  it  has  been  truly 
said  that  under  a  constitution  conferring  specific  powers,  the  power 
contended  for  must  be  granted,  or  it  cannot  be  exercised."  The  Chief- 
Justice  then  considers  the  grant  of  power,  and  deduces  it  from  that 
clause  in  the  Constitution  which  confers  on  Congress  authority  to 
make  all  laws  which  shall  be  necessary  and  proper  to  carry  into  exe- 
cution the  powers  vested  by  the  Constitution  in  the  government  of  the 
United  States.  "  The  government,"  he  remarks,  "  is  to  pay  the  debt  of 
the  Union,  and  must  be  authorized  to  use  the  means  which  appear  to 
itself  most  eligible  to  effect  that  object."  We  shall  hereafter  have 
occasion  to  notice  one  or  two  very  important  decisions  affirming  the 
constitutionality  of  acts,  the  warrant  for  which  was  to  be  found  only 
in  a  still  more  liberal  construction  of  this  section. 

The  case  of  the  United  States  vs.  Judge  Peters,*  at  the  session  of 
the  Court  in  1809,  afforded  the  Chief-Justice  the  opportunity  of  ex- 
pressing his  views  in  regard  to  the  independence  of  the  Federal  tribu- 
nals, of  all  State  legislation.  The  doctrine  which  he  laid  down  in  that 
case  was  that  the  Legislature  of  a  State  could  not  annul  the  judgment, 
or  determine  the  jurisdiction  of  the  courts  of  the  United  States,  or 
destroy  rights  acquired  under  those  judgments.  "  If  it  were  other- 
wise," he  remarks,  "  the  Constitution  itself  becomes  a  solemn  mockery; 
and  the  nation  is  deprived  of  the  means  of  enforcing  its  laws,  by  the 
instrumentality  of  its  own  tribunals."  The  supremacy  of  the  Federal 
Judiciary  over  the  State  tribunals  in  cases  of  constitutional  construc- 
tion, and  its  independence  of  State  legislation,  were  fixed  and  promi- 
nent ideas  in  the  mind  of  Marshall,  and  were  always  regarded  by  him 
as  fundamental  parts  of  the  Federal  system.f 

*  5  Cranch's  Reports,  115. 

t  It  was  afterwards  adjudged  in  McKim  vs.  Voorhies,  7  Cranch,  279,  that  a 


JOHN  MARSHALL.  359 

No  clause  of  the  Constitution  more  deeply  affects  the  legislative  au- 
thority of  the  states,  than  that  which  prohibits  a  State  from  passing 
any  law  impairing  the  obligation  of  contracts.  Nor  has  any  been  the 
subject  of  more  protracted  litigation,  or  of  more  able  and  learned 
discussion.  One  of  the  earliest  of  the  cases  involving  this  question 
was  the  case  of  Fletcher  vs.  Peck,*  brought  up  on  a  writ  of  error  from 
the  Circuit  Court  of  Massachusetts,  and  known  by  the  name  of  the 
"Georgia  Claim."  This  cause  was  twice  argued  in  the  Supreme 
Court,  first  at  the  February  term,  1809,  and  again  a  year  afterwards. 
The  ability  of  the  argument  was  fully  commensurate  with  the  novelty 
and  interest  of  the  questions  discussed.  Not  a  word  need  be  added  in 
regard  to  it,  further  than  to  mention  the  names  of  the  counsel  who 
appeared  on  either  side.  For  the  plaintiff  in  error,  on  the  first  argu- 
ment, was  Mr.  Luther  Martin,  and  for  the  defendant,  John  Q.  Adams,f 
and  Mr.  Harper  of  Maryland.  On  the  second  argument,  Mr.  Adams 
was  replaced  by  Joseph  Story,  soon  about  to  take  his  seat  in  that  au- 
gust tribunal,  which  he  now  for  the  first  time  addressed. 

One  of  the  questions  presented  by  this  case  involved  a  discussion 
of  the  nature  of  a  public  grant  of  lands,  and  the  effect  of  a 
repeal  of  the  grant  by  a  subsequent  Legislature.  So  much  of 
the  case  as  is  necessary  to  understand  this  question,  may  be  stated  as 
follows  :  The  State  of  Georgia  had  granted  a  tract  of  five  hundred 
thousand  acres  of  land^o  the  "  Georgia  Company."  The  defendant, 
Peck,  claiming  title  under  the  company,  executed  a  deed  of  part  of 
these  lands  to  Fletcher,  containing  among  other  covenants,  one,  that 
all  the  title  which  Georgia  ever  had  in  the  premises  had  been  conveyed 
to  Peck.  The  State  of  Georgia  prior  to  this  conveyance  had  passed 
an  act  annulling  and  declaring  void  the  act  under  which  the  grant  was 
made.  Fletcher  accordingly  sued  Peck  for  a  breach  of  covenant,  and 
State  Court  has  no  authority  to  enjoin  a  judgment  of  the  Circuit  Court  of  the 
United  States,  or  stay  proceedings  under  it.  It  was  also  determined  in  Slocum 
vs.  Mayberry,  2  Whcaton,  1,  that  no  State  tribunal  could  interfere  by  process  of 
replevin,  injunction,  or  otherwise,  with  a  seizure  of  property  made  by  revenue  offi- 
cers under  the  laws  of  the  United  States. 

*  6  Cranch's  Reports,  87. 

t  The  name  of  Sir.  Adams  appears  more  than  once  as  counsel  in  the  Supreme 
Court,  prior  to  this  period.  He  was  engaged  in  one  or  two  important  causes 
argued  in  1801,  and  reported  in  the  second  volume  of  Cranch's  Reports. 


360  LIVES  OF  THE  CHIEF-JUSTICES. 

the  point  presented  upon  this  branch  of  the  case  was,  whether  the 
Legislature  of  Georgia  could  constitutionally  repeal  the  act,  so  as  to 
rescind  the  sale  made  under  it. 

In  pronouncing  his  decision  upon  this  grave  question,  the  Chief-Jus- 
tice laid  down  the  doctrine,  which  it  is  believed  has  never  since  been 
questioned  or  shaken,  that  a  grant  of  lands  is  a  contract  within  the 
meaning  of  the  Constitution,  and  that  when  a  State  law  was  in  its  na- 
ture a  contract,  and  absolute  rights  have  vested  under  it,  a  repeal  of 
the  law  could  not  divest  these  rights,  or  impair  the  title  so  acquired. 
"  Since  then,  in  fact,"  he  remarks,  "  a  grant  is  a  contract  executed, 
the  obligation  of  which  still  continues,  and  since  the  Constitution  uses 
the  general  term  contract,  without  distinguishing  between  those  which 
are  executory  and  those  which  are  executed,  it  must  be  construed  to 
comprehend  the  latter  as  well  as  the  former.  A  law  annulling  con- 
veyances between  individuals  and  declaring  that  the  grantors  should 
stand  seized  of  their  former  estates  notwithstanding  these  grants, 
would  be  as  repugnant  to  the  Constitution  as  a  law  discharging  the 
vendors  of  property  from  the  obligation  of  executing  their  contracts 
by  conveyances.  It  would  be  strange  if  a  contract  to  convey  was  se- 
cured by  the  Constitution,  while  an  absolute  conveyance  remained 
aprotected." 

Having  established  the  general  proposition  as  regards  individuals, 
the  Chief-Justice  then  proceeds  to  consider  and  establish  the  broader 
doctrine  that  a  grant  from  a  State  is  not  to  be  excluded  from  the  ope- 
ration of  the  constitutional  provision.  In  regard  to  this  subject  he 
uses  the  following  significant  language  :  "  Whatever  respect  might 
have  been  felt  for  the  State  sovereignties,  it  is  not  to  be  disguised  that 
the  framers  of  the  Constitution  viewed  with  some  apprehension,  the 
violent  acts  which  might  grow  out  of  the  feelings  of  the  moment ; 
and  that  the  people  of  the  United  States,  in  adopting  that  instrument, 
have  manifested  a  determination  to  shield  themselves  and  their  pro- 
perty from  the  effects  of  those  sudden  and  strong  passions  to  which 
men  are  exposed.  The  restrictions  upon  the  legislative  power  of  the 
states  are  obviously  founded  in  this  sentiment ;  and  the  Constitution 
i  of  the  United  States  contains  what  may  be  deemed  a  bill  of  rights  for 
|bhe  people  of  each  State."  * 

*  la  ail  opinion  delivered  by  the  Chief-Justice  in  a  subsequent  case,  he  enforces 


JOHN  MARSHALL.  3^ 

I  have  observed  that  Judge  Story  was  engaged  in  the  argument  of 
this  interesting  cause,  the  first,  and  I  believe,  the  only  one  ever  argued 
by  him  before  that  tribunal,  of  which  he  soon  afterwards  became  a  mem- 
ber. Three  years  before,  he  had  come  to  Washington,  attracted  by  busi- 
ness or  curiosity,  or  both,  for  the  first  time  in  his  life,  and  had  made  the 
acquaintance  of  most  of  the  distinguished  persons  then  in  the  capital. 
,The  next  winter  lie  repeated  his  visit.  The  Supreme  Court  at  that 
time  consisted  of  the  Chief-Justice  and  six  associates,  Gushing,  Chase, 
"Washington,  Livingston,  Johnson,  and  Todd.*  Story  soon  made  the 
acquaintance  of  most  or  all  of  these  gentlemen,  including  the  Chief-Jus- 
tice. A  description  of  the  person  of  Marshall,  as  he  appeared  at  that 
time,  and  the  impression  which  a  first  interview  left  upon  the  mind  of 
Story,  will  not  be  without  interest  to  the  reader.  It  is  contained  in  a 
letter  to  a  friend,  written  from  Washington  in  the  winter  of  1808  : 

"  Marshall  is  of  a  tall,  slender  figure,  not  graceful  nor  imposing,  but 
erect  and  steady.  His  hair  is  black,  his  eyes  small  and  twinkling,  his 
forehead  rather  low,  but  his  features  are  in  general  harmonious.  His 
manners  are  plain,  yet  dignified  ;  and  an  unaffected  modesty  diffuses 
itself  through  all  his  actions.  His  dress  is  very  simple,  yet  neat ;  his 
language  chaste,  but  hardly  elegant ;  it  does  not  flow  rapidly,  but  it 
seldom  wants  precision.  In  conversation  he  is  quite  familiar,  but  is 
occasionally  embarrassed  by  a  hesitancy  and  drawling.  His  thoughts 
are  always  clear  and  ingenious,  sometimes  striking,  and  not  often 
inconclusive  ;  he  possesses  great  subtilty  of  mind,  but  it  is  only  occa- 
sionally exhibited.  I  love  his  laugh — it  is  too  hearty  for  an  intriguer — 
and  his  good  temper  and  unwearied  patience  are  equally  agreeable  ou 

similar  views,  declaring  that  the  State  of  New  Jersey  could  not,  consistently  with 
the  Constitution  of  the  United  States,  pass  an  act,  rescinding  a  former  act,  which 
provided  that  certain  lands  which  should  be  purchased  for  the  Indians  should  not 
thereafter  be  subject  to  any  tax,  inasmuch  as  such  act  was  a  contract,  within  the 
meaning  of  the  Constitution.  See  State  of  New  Jersey  vs.  Wilson,  7  Crunch  Rep., 
164 

*  Mr.  Brockholst  Livingston,  of  New  York,  had  been  appointed  in  place  of 
Judge  Paterson,  deceased,  on  the  10th  November,  1806  ;  Mr.  William  Johnson,  of 
South  Carolina,  in  place  of  Judge  Moore,  resigned,  on  26th  March,  1804,  and  Mr. 
Thomas  Todd,  of  Kentucky,  had  been  appointed  on  the  3d  March,  1807,  under  the 
act  then  lately  passed  creating  another  Circuit,  and  an  additional  Justice  of  the 
Supreme  Court. 


362  LIVES  OF  THE  CHIEF-JUSTICES. 

the  bench  and  in  the  study.  His  genius  is,  in  my  opinion,  vigorous 
and  powerful,  less  rapid  than  discriminating,  and  less  vivid  than  uni- 
form in  its  light.  He  examines  the  intricacies  of  a  subject  with  calm 
and  persevering  circumspection,  and  unravels  the  mysteries  with  irre- 
sistible acuteness.  He  has  not  the  majesty  and  compactness  of 
thought  of  Dr.  Johnson  ;  but  in  subtle  logic  he  is  no  unworthy  disci- 
ple of  David  Hume."  * 

The  artless  simplicity  of  Marshall's  manners  and  conversation  seems 

*  In  the  same  letter  we  have  Story's  first  impressions  of  Marshall's  associates  on 
the  bench : 

"  Washington  is  of  a  very  short  stature  and  quite  boyish  in  his  appearance. 
Nothing  about  him  indicates  greatness ;  he  converses  with  simplicity  and  frank- 
ness. But  he  is  highly  esteemed  as  a  profound  lawyer,  and  I  believe  not  without 
reason.  His  written  opinions  are  composed  with  ability,  and  on  the  bench  he  ex- 
hibits great  promptitude  and  firmness  in  decision.  It  requires  intimacy  to  value 
him  as  he  deserves. 

^ivingston  has  a  fine  Roman  face ;  an  aquiline  ndse,  high  forehead,  bald  head, 
projecting  chin,  indicate  deep  research,  strength,  and  quickness  of  mind.  I 
Tame  no  hesitation  in  pronouncing  him  a  very  able  and  independent  judge.  He 
ridently  thinks  with  great  solidity,  and  seizes  on  the  strong  points  of  argument, 
le  is  luminous,  decisive,  earnest  and  impressive  on  the  bench.  In  private  society 
lie  is  accessible  and  easy,  and  enjoys  with  great  good  humor  the  vivacities,  if  I 
may  coin  a  word,  of  the  wit  and  the  moralist. 

"Of  Chase  I  have  formerly  written.  On  a  nearer  view  I  am  satisfied  that  the 
elements  of  his  mind  are  of  the  very  first  excellence  ;  age  and  infirmity  have,  in 
some  degree  impaired  them.  His  manners  are  coarse  and  in  appenranco  harsh  ; 
but  in  reality  he  abounds  in  good  humor.  He  loves  to  croak  and  grumble,  and  in 
the  very  same  breath  he  amuses  you  extremely  by  his  anecdotes  and  pleasantry. 
His  first  approach  is  formidable,  but  all  difficulty  vanishes  when  you  once  under- 
stand him.  In  person,  in  manners,  in  unwieldy  strength,  in  severity  of  reproof,  in 
real  tenderness  of  heart,  and  above  all  in  intellect,  he  is  the  living,  I  had  almost 
said,  the  exact  image  of  Samuel  Johnson.  To  use  a  provincial  expression,  I  like 
him  hugely. 

"  I  ought  not  to  pass  by  Judge  Johnson,  though  I  scarcely  know  how  to  exhibit, 
him  individually.    He  has  a  strong  mathematical  head,  and  considerable  sound- 
ness of  erudition.    He  reminds  me  of  Mr.  Lincoln,  and  in  the  character  of  his 
mind  he  seems  to  me  not  dissimilar.    He  has,  however,  less  of  metaphysics  and 
k  more  of  logic. 

"  This  is  the  first  time  of  Judge  Todd's  appearance  on  the  bench,  and  as  he  is  a 
lest,  retired  man,  I  cannot  delineate  him.  He  does  not  appear  to  want 
its."— Life  and  Letters  of  Story,  Vol.  I.  page  167. 


JOHN  MARSHALL.  353 

to  have  been  one  of  the  first  things  to  attract  the  attention  of  the 
stranger.  All  who  ever  approached  him  have  recorded  this  as  among 
their  earliest  and  most  agreeable  impressions.  Nothing  could  be  more 
plain  and  unpretending  than  his  ordinary  intercourse  with  society. 
He  never  talked  for  the  sake  of  talking,  never  for  display.  In  his 
conversation  he  seemed  to  forget  himself,  and  be  intent  only  on  com- 
municating or  receiving  pleasurable  sensations  or  information.  Con- 
versation with  him  was  a  real  interchange  of  ideas,  and  he  was  quite 
as  well  pleased  to  listen  as  to  be  listened  to.  "  Thus,"  says  the  writer 
of  a  recent  notice  of  the  Chief-Justice,  "  Nothing  could  well  be  wiser 
than  his  usual  conversation.  It  was  the  most  artless  and  yet  the 
soundest  sense,  rendered  agreeable  by  the  greatest  amenity  of  style. 
Expression  he  seemed  never  to  have  studied — no  trick  nor  even  orna- 
ment of  words,  beyond  such  as  were  just  to  the  purpose  and  clearly 
conveyed  his  thought :  but,  of  course,  to  a  height  of  reason  and  a 
gentleness  of  heart  like  his,  there  was  not  wanting  an  aptness  of  dic- 
tion which  made  their  precisely  appropriate  vehicle,  their  natural  lan- 
guage, and,  as  such,  had  its  grace  in  its  fitness — the  only  species  of 
beauty  that  it  could  well  admit."  * 

*  The  same  writer  has"  drawn  a  sketch  of  his  personal  appearance,  which,  to  say 
the  least,  is  not  very  flattering.  Never  having  seen  the  Chief-Justice,  I  am  un- 
able to  say  how  near  it  accords  with  the  truth  : 

"  As  to  face  and  figure,  Nature  had  been  equally  little  at  pains  to  stamp  with 
any  princely  effigy  of  what  pleases,  the  virgin  gold  of  which  she  had  composed 
his  head  and  heart.  Except  that  his  countenance  was  thoughtful  aad  benignant, 
it  had  nothing  about  it  that  would  have  commanded  a  second  look.  Separately, 
his  features  were  but  indifferent ;  jointly,  they  were  no  more  than  commonplace. 
Then,  as  to  stature,  shape,  and  carriage,  there  was  nothing  in  him  that  was  not 
rather  the  opposite  of  commanding  or  prepossessing  :  he  was  tall ;  yet  his  height 
was  without  the  look  of  either  strength  or  lightness,  and  gave  neither  dignity  nor 
grace.  His  body  seemed  as  411  as  his  mind  well  compacted ;  he  not  only  wos 
without  proportion,  but  of  members  singularly  knit,  that  dangled  from  each  other 
and  looked  half  dislocated.  Habitually,  he  dressed  very  carelessly ;  in  the  garb, 
but  I  should  not  dare  to  say  in  the  mode,  of  the  last  century.  You  would  have 
thought  he  had  on  the  old  clothes  of  a  former  generation,  not  made  for  him  by 
even  some  superannuated  tailor  of  that  period,  but  gotten  from  the  wardrobe  of 
some  antiquated  slop-shop  of  second-hand  raiment.  Shapeless  as  he  was,  he  would 
probably  have  defied  all  fitting,  by  whatever  skill  of  the  shears ;  judge,  then,  how 
the  vestments  of  an  age  when,  apparently,  coats  and  breeches  were  cnt  for  nobo Jy 
in  particular,  and  waistcoats  were  almost  dressing-gowns,  sat  upon  him." 


364:  LIVES  OP  THE  CHIEF-JUSTICES. 

The  trials  growing  out  of  the  alleged  treasonable  enterprise  of 
Aaron  Burr  form  one  of  the  most  notable  events  in  the  political  his- 
tory of  the  country,  as  well  as  one  of  the  most  interesting  chapters  in 
the  judicial  career  of  Chief-Justice  Marshall.  The  connexion  of  the 
Chief-Justice  with  these  trials,  and  his  opinions  upon  the  law  of  trea- 
son, as  he  found  it  limited  and  defined  in  the  Constitution  of  the 
United  States,  subjected  him  to  severe  criticism  and  animadversion  at 
the  time  ;  but  no  candid  and  unprejudiced  mind  can  at  this  day  fail  to 
do  full  and  ample  justice,  if  not  to  the  correctness  of  his  reasoning,  at 
least  to  the  purity  of  motive,  and  independence  of  "judgment  which 
prompted  those  opinions. 

,  Burr  was  arrested  in  January,  1801,  on  the  Mississippi  ;  and, 
having  been  detained  awhile  in  custody,  escaped,  and  was  subsequently 
again  arrested  near  Fort  Stoddart,  on  the  Tombigbee  River,  making 
his  way,  in  disguise,  to  Mobile.  From  this  place  he  was  conducted  to 
Richmond,  Virginia,  for  examination  and  trial  on  a  charge  of  high 
treason.  The  history  of  this  matter  is  too  well  known  to  render  it 
necessary  in  this  place  to  enter  into  the  particulars  of  the  transaction, 
or  the  details  of  the  evidence.  From  this  evidence  it  would  appear 
that  Burr  certainly  did  at  one  time  entertain  visionary  notions  of  his 
ability  to  produce  a  revolution  which  should  result  in  the  dismember- 
ment of  the  Union  and  the  erection  of  a  Western  Confederacy  beyond 
the  Alleghanies  ;  and  that,  finding  this  enterprise  somewhat  arduous 
for  his  means,  he  abandoned  it,  and  sought  the  gratification  of  his 
restless  and  towering  ambition  in  a  scheme  to  invade  Mexico  and  make 
himself  master  of  those  fair  dominions.* 

Before  alluding  to  the  examination  and  trial  of  Burr,  it  will  be 
proper  to  notice  the  case  of  two  of  his  alleged  accomplices,  brought 
before  the  Supreme  Court  at  the  February  term,  1807,  in  which  the 
Chief-Justice,  after  full  argument  and  careful  deliberation,  delivered 
his  opinion  upon  the  construction  of  the  law  of  treason  as  defined  by 
the  Constitution.  This  case  is  reported  under  the  title  of  ex  parte 
Bollman  and  ex  parte  Swartwout.f  It  was  argued  and  decided  be- 
fore the  preliminary  examination  of  Col.  Burr,  and  the  opinion  deliv- 
ered by  the  Chief-Justice  may  be  taken  as  his  earliest  exposition  of 
the  law  of  treason. 

*  See  testimony  on  Burr's  trial.  t  4  Cranch's  Reports,  75  to  136. 


JOHN  MARSHALL.  f          3^5 

Dr.  Erick  Bollman  and  Samuel  Swartwout  had  been  arrested  on  a 
warrant  issued  January  2tth,  1807,  and  committed  to  prison  by  order 
of  the  Circuit  Court  for  the  District  of  Columbia,  on  a  charge  of 
treason  in  being  concerned  in  Burr's  conspiracy.  On  motion  of  the 
prisoner's  counsel,  Mr.  Charles  Lee  and  Mr.  Harper,  and  after  a  full 
argument  of  the  question  by  these  gentlemen,  the  Supreme  Court 
granted  a  habeas  corpus  to  bring  up  the  bodies  of  Mr.  Swartwout 
and  Dr.  Bollinan.  The  return  to  the  writ  was  made  on  the  16th  of 
February,  whereupon  Mr.  Lee  moved  that  the  prisoners  be  discharged 
or  admitted  to  bail.  He  was  ably  supported  in  this  motion  by  Mr. 
Harper,  Mr.  Key,  and  Mr.  Luther  Martin,  who  contended  with  great 
force  and  earnestness,  that  the  commitment  was  illegal  upon  its  face, 
and  that  the  testimony  upon  which  it  was  made,  was  not  sufficient  to 
make  out  a  primafade  case  of  treason.  To  this  argument  Mr.  Caesar 
A.  Rodney,  the  Attorney-General  of  the  United  States,  and  Mr. 
Jones,  the  attorney  for  the  District  of  Columbia,  replied  with  equal 
vigor  and  ability.  Chief-Justice  Marshall  delivered  the  opinion  of  the 
Court  on  the  21st  February,  granting  the  motion  of  the  counsel  for 
the  prisoners,  and  discharging  them  from  custody. 

I  have  alluded  to  this  case  for  the  purpose  of  elucidating  more 
clearly  the  mode  in  which  the  Chief-Justice  construed  the  law  of  trea- 
son ;  and  also  as  introductory  to  that  important  trial  at  which  a  few 
weeks  later  he  was  called  upon  to  preside — the  greatest  trial  knowu 
to  the  criminal  jurisprudence  of  our  country — which  brought  to  the 
bar  under  an  indictment  for  high  treason  a  man  who  had  recently  held 
the  second  office  under  the  Government,  and  which  called  out  a  dis- 
play of  learning,  genius,  eloquence,  and  juridical  wisdom,  rarely  equalled 
in  this  or  any  other  country.  , 

The  Constitution,  the  fundamental  law  of  the  United  States,  strictly 
defines  the  crime  of  treason.  Sufficiently  rigorous  for  every  political 
necessity,  it  is  scarcely  susceptible  of  being  used  for  the  purposes  of 
tyranny  and  individual  oppression.  So  definite  are  its  provisions  that 
not  even  a  Jeffries  could  pervert  it.  No  such  sanguinary  judgments 
as  some  of  those  which  have  disgraced  Westminster  Hall  have  ever 
been,  or  ever  could  be,  pronounced  from  the  bench  of  the  Federal  Courts 
The  genius  of  a  republic  such  as  ours  seeks  and  establishes  another  de- 
finition of  treason  from  that  which  consigned  a  Vane,  a  Russell,  and  a 


366  LIVES,  OF  THE  CHIEF-JUSTICES. 

Sidney  to  the  block  ;  and  it  is  really  one  of  the  proudest  boasts  of  the 
republic,  that  for  the  whole  period  of  its  existence,  it  has  neither  asked 
nor  needed  any  other  definition  of  treason  than  that  contained  in  the 
plain,  direct,  simple  constitutional  provision — "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against  them,  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and  comfort." 

The  case  of  Bollman  and  Swartwout  did  not  come  within  this  de- 
finition. Whatever  might  have  been  their  connexion  with  Burr,  and 
the  operations  set  on  foot  by  him,  yet,  in  the  view  of  the  Chief-Justice, 
the  essential  fact  to  complete  the  offence — the  actual  levying  of  war — 
was  not  established.  "  To  constitute  that  specific  crime  for  which  the 
prisoners  now  before  the  Court  have  been  committed,"  he  says,  "  war 
must  be  actually  levied  against  the  United  States.  However  flagitious 
may  be  the  crime  of  conspiring  to  subvert  by  force  the  government  of 
our  country,  such  conspiracy  is  not  treason.  To  coaspire  to  levy  war, 
and  actually  to  levy  war,  are  distinct  offences.  The  first  must  be 
brought  into  operation  by  the  assemblage  of  men  for  a  purpose  trea- 
sonable in  itself,  or  the  fact  of  levying  war  cannot  have  been  com- 
mitted." 

Such  was  held  by  Judge  Marshall  to  be  the  American  law  of  trea- 
son. So  widely  different  is  it  from  the  English  statute  of  treason— that 
statute  which  does  not  permit  the  subject  to  f  imagine"  the  death  of 
the  king — that  the  two  do  not  seem  descended  from  the  same  parent 
stem.  Russell  died  for  a  less  crime  than  even  conspiring  to  subvert 
the  government ;  the  unpublished  thoughts  of  a  philosopher  in  his 
closet  caused  the  head  of  Sidney  to  roll  from  the  scaffold.  "  Such  cases 
can  never  occur  in  America,"  says  Chief-Justice  Marshall  in  this  opinion. 
"  To  prevent  the  possibility  of  those  calamities  which  result  from  the 
extension  of  treason  to  offences  of  minor  importance,  that  great  fun- 
damental law  which  defines  and  limits  the  various  departments  of  our 
government,  has  given  a  rule  on  the  subject  both  to  the  legislature  and 
the  Courts  of  America,  which  neither  can  be  permitted  to  transcend." 

It  was  not  his  intention,  he  remarks,  in  the  same  case,  to  say  that 
no  individual  can  be  guilty  of  treason  who  has  not  appeared  in  arms 
against  his  country  ;  on  the  contrary,  if  war  be  actually  levied,  all 
who  are  actually  leagued  in  the  general  conspiracy  and  perform  any 
part,  however  minute,  or  however  remote  from  the  scene  of  action,  are  to 


JOHN  MARSHALL. 


367 


be  regarded  as  traitors.*  "  To  complete  the  crime  of  levying  war  against 
the  United  States,"  he  remarks  "  there  must  be  an  actual  assemblage 
of  men  for  the  purpose  of  executing  a  treasonable  design.  In  the  case 
now  before  the  Court  a  design  to  overturn  the  government  of  the 
United  States  in  New  Orleans  by  force,  would  have  been  unquestion- 
ably a  design,  which,  if  carried  into  execution,  would  have  been  trea- 
son ;  .and  the  assemblage  of  a  body  of  men  for  the  purpose  of  carry- 
ing it  into  execution  would  amount  to  levying  war  against  the  United 
States  ;  but  no  conspiracy  for  this  object,  no  enlisting  of  men  to  effect 
it,  would  be  an  actual  levying  of  war." 

The  session  of  the  Supreme  Court  at  which  the  case  of  Bollman 
and  Swartwout  was  decided  had  scarcely  terminated  when  the  Chief- 
Justice  was  called  upon  to  enter  upon  the  trial  of  Aaron  Burr, 
the  principal  actor  in  this  gigantic  scheme  of  aggrandizement.  Col. 
Burr  had  been  brought  to  the  city  of  Richmond  on  the  26th  of 
March,  guarded  by  a  military  escort,  and  on  the  morning  of  the  31st 
appeared  with  his  counsel,  Edmund  Randolph  and  John  Wickham, 

*  This  part  of  the  opinion  of  the  Supreme  Court  was  the  subject  of  criticism, 
and  much  argument,  in  the  discussions  on  Burr's  trial,  which  I  shall  presently 
notice.  It  was  thought  by  counsel  to  countenance,  in  some  degree,  the  odious  doc- 
trine of  constructive  treason,  which  the  Constitution  in  express  terms  excludes. 
The  Chief-Justice  remarks  in  his  opinion  on  Burr's  trial.f  that  four  judges  were 
present  at  the  decision  of  Bollman  and  Swartwout's  case,  and  he  thought  them 
unanimous ;  but  that  he  had  since  reason  to  suspect  that  one  of  them,  who  was 
prevented  from  entering  into  a  full  discussion,  did  not  concur  in  this  particular 
point  with  his  brethren.  He  adds,  that  for  himself  he  then  thought,  and  still  con- 
tinued to  think,  the  opinion  correct.  He  qualifies  this,  however,  by  remarking 
that  it  is  not  to  be  understood  as  adopting  the  whole  doctrine  of  the  English  books 
on  the  subject  of  accessories  to  treason.  Such  certainly  was  not  the  fact.  Those 
only  who  perform  a  part,  and  who  are  leagued  in  the  conspiracy,  are  declared 
to  be  traitors.  There  could  be  no  war  levied,  and  consequently  no  treason,  with- 
out the  actual  embodying  of  men,  and  a  military  assemblage  in  force.  All  that 
the  Court  intended  to  say  was,  that  in  order  to  convict  for  treason,  it  was  not  ab- 
solutely necessary  for  the  accused  to  be  found  actually  embodied  among  the  trea- 
sonable assemblage.  He  must,  however,  be  proved  to  have  done  some  act,  to 
have  performed  some  part,  toward  the  accomplishment  of  the  particular  overt 
act  of  war  laid  in  the  indictment.  These  were  the  principles  subsequently  avow- 
ed, as  we  shall  see,  by  the  Chief-Justice  on  Burr's  trial,  and  it  is  believed  are  now 
to  be  considered  the  settled  doctrines  of  the  Federal  Courts. 

t  2  Burr'a  Trial,  page  406.  It  was  insisted  by  Burr's  counsel  that  this  part  of  tho  opinion  WM 
extra-judicial,  and  not  binding  as  authority. 


368  LIVES  OF  THE  CHIEF-JUSTICES. 

Esqrs.,  before  the  Chief-Justice,  who  had  already  been  seated  half  an 
hour  on  the  bench.  The  accused  apologized  in  his  blandest  manner 
for  the  delay,  declaring  that  he  had  "  misapprehended  the  hour  at 
which  he  was  bound  to  appear,"  and  the  argument,  on  the  motion  of 
Mr.  Hay,  District- Attorney  of  Yirginia,  and  Mr.  Rodney,  Attorney- 
General  of  the  United  States,  to  commit  the  accused  to  answer  for  a 
high  misdemeanor,  and  on  a  charge  of  treason,  immediately  com- 
menced. Burr  himself,  calm,  collected,  confident  in  language  and 
manner,  addressed  the  court  after  his  counsel  had  taken  their  seats,  in 
opposition  to  the  motion,  in  one  of  those  plausible  and  insinuating 
arguments  whose  keen  and  subtle  logic  was  so  peculiarly  his  own.  "  Ac- 
cording to  the  Constitution,"  he  remarked,  "  treason  consisted  in  acts  ; 
that  an  arrest  could  only  be  justified  by  the  suspicion  of  acts,  whereas, 
in  this  case,  his  Honor  was  invited  to  issue  a  warrant  upon  mere  con- 
jecture ;  that  alarms  existed  without  cause  ;  that  Mr.  Wilkinson 
alarmed  the  President,  and  the  President  alarmed  the  people  of  Ohio. 
He  appealed  to  historical  facts,"  &c.* 

The  next  day  the  Chief-Justice  pronounced  his  opinion,  and  after  a 
careful  review  of  the  subject,  decided  to  hold  Col.  Burr  to  answer  the 
charge  of  a  misdemeanor  only,  without  including  the  charge  of  high 
treason.  The  offence  being  bailable,  the'  accused  was  recognized  in 
the  sum  of  ten  thousand  dollars. 

On  the  22nd  of  May,  1807,  Burr  was  arraigned  before  Judge  Mar- 
shall and  his  Associate,  Cyrus  Griffin,  District  Judge  of  Yirginia,  at  a 
Circuit  Court  held  for  that  district  at  the  city  of  Richmond.  The 
Attorney-General  of  the  United  States  having  withdrawn,  Mr.  Hay, 
who  conducted  the  prosecution,  was  assisted  by  Alexander  McRae 
and  the  afterwards  celebrated  William  Wirt,  of  Virginia.  Col.  Burr 
appeared  with  two  additional  counsel,  Benjamin  Botts  and  John 
Baker,  who  were  joined  soon  after  by  Luther  Martin,  of  Maryland. 
It  is  not,  however,  too  much  to  say — and  it  is  no  disparagement  to 
the  eminent  abilities  of  either  Mr.  Randolph,  Mr.  Martin,  or  Mr. 
Wickham — that  Burr  himself  was  his  own  leading  counsel,  and  his  the 
keen  and  powerful  intellect,  which  originated  and  directed  the  ad- 
mirably arranged  proceedings  of  the  entire  defence,  f  Whatever  may 

*  1  Burr's  Trial,  p.  7. 

t  The  great  ability  of  Col.  Burr  as  a  lawyer  has  never  been  denied  or  ques- 


JOHN    MARSHALL.  359 

be  thought  of  the  guilt  or  innocence  of  Col.  Burr,  or  whatever  opin- 
ions may  be  entertained  of  his  merits  and  character  as  a  man,  one  can 
scarcely  help  feeling  a  degree  of  interest  in  his  defence,  and  it  may 
turned.  The  "  subtlest  practitioner  of  the  times,"  as  he  has  been  significantly 
termed,  he  stood  for  some  years,  before  his  elevation  to  the  Vice-Presidency,  the 
formidable  rival  and  competitor  of  Hamilton  at  the  head  of  the  New  York  bar. 
As  a  mere  lawyer,  Burr  was  greater  than  Hamilton ;  but  as  an  advocate  the  latter 
was  110  doubt  superior.  I  have  heard  a  gentleman,*  who  was  well  acquainted  with 
them  both,  and  had  frequently  listened  to  their  speeches  and  arguments  at  the 
bar,  describe  the  manner  and  characteristics  of  each  as  a  speaker  : — Hamilton,  rich 
in  declamation,  but  at  the  same  time  cogent  and  convincing,  copious  in  language, 
earnest,  and  sometimes  impassioned  in  manner.  Burr,  calm,  unruffled,  almost 
colloquial,  and  never  attempting  anything  like  declamation  or  rhetoric,  but  com- 
pact, nervous,  and  clear  as  a  sunbeam,  armed  at  every  point,  skillful  in  defence, 
adroit  in  attack.  His  arguments  to  the  Court,  and  his  addresses  to  the  jury  were 
always  brief,  but  pointed  and  pertinent ;  rarely,  except  upon  great  occasions,  ex- 
ceeded half  an  hour,  and  yet  when  he  closed  he  seemed  to  have  said  everything 
material  to  his  argument,  or  which  the  case  required. 

After  his  trial  for  treason,  Col.  Burr  left  the  country,  a  broken  and  ruined 
man.  Having  travelled  through  England  and  part  of  the  continent  of  Europe,  he 
returned  to  New  York  in  1812,  and  opening  an  office  at  No.  12  Nassau-street,  re- 
sumed the  practice  of  the  law.  It  had  become  too  much  the  fashion,  however,  to 
denounce  and  decry  CoL  Burr,  and  he  never  afterwards  regained  the  confidence 
of  the  community.  Yet  he  was  engaged  upon  some  causes  of  great  importance, 
among  which  may  be  mentioned  the  celebrated  Eden  will  case,  in  the  year  1828, 
reported  under  the  title  of  Varick  vs.  Jackson,  in  2  Wendell's  New  York  Reports, 
page  166,  a  case  in  which  the  New  York  Court  of  Errors,  after  a  most  elaborate 
and  exhausting  discussion,  sustained  the  positions  advocated  by  Burr,  in  opposition 
to  the  general  current  of  English  authorities,  namely,  that  an  existing  adverse 
possession  against  the  devisor  at  the  time  of  making  his  will  and  at  the  time  of  his 
death,  does  not  affect  the  validity  of  a  devise  of  real  estate.  It  should  be  remark- 
ed, however,  that  the  main  argument  in  the  case  was  made  by  Burr's  associate 
counsel,  Mr.  Van  Buren,  afterwards  President  of  the  United  States,  an  argument 
characterized  by  more  than  that  gentleman's  usual  acknowledged  legal  talent,  in- 
genuity, and  great  ability.  At  its  close  Mr.  Burr  declined  arguing  the  principal 
question,  which  had  been  so  thoroughly  discussed  by  his  associate,  and  merely 
made  a  few  remarks  upon  the  question  of  the  examination  of  one  of  the  witnesses. 

Burr  died  on  Staten  Island,  September  Htb,  1836,  at  the  advanced  age  of  eighty- 
five,  with  scarcely  a  friend,  says  one  who  knew  him,  "  to  close  his  eyes  or  wipe 
the  dew-drops  of  death  from  his  brow."  He  was  buried  at  Trenton,  New  Jersey. 
Within  a  few  years  a  plain  monument,  with  the  simplest  inscription,  has  been 
placed,  almost  by  stealth,  at  his  grave. 

*  The  venerable  Dr.  Nott,  President  of  Union  College. 

24 


370  LIVES  OF  THE  CHIEF-JUSTICES. 

be  something  like  a  sentiment  of  admiration  at  the  display  of  keen 
intellect  and  eminent  skill  which  he  developed  on  this  occasion.  Calm 
and  self-reliant,  but  without  arrogance,  firm,  and  perhaps  a  little 
haughty  in  his  demeanor,  but  generally  courteous  to  his  adver- 
saries, and  respectful  to  the  Court,  he  displayed  throughout  the  pre- 
liminary proceedings  of  the  trial  the  firm  temper  of  an  elevated  mind 
as  well  as  the  practiced  skill  of  the  veteran  lawyer.  In  his  various 
motions  and  brief  addresses  to  the  Court,  not  less  than  in  his  occa- 
sional questions  to  Witnesses  on  the  stand,  he  exhibited  a  shrewdness, 
a  depth  of  observation  and  a  penetration,  which  certainly  develop 
great  capacity  and  power  of  mind.*  Though  Burr  may  have  been 
a  bad  man,  no  one  will  deny  that  he  was  an  able  one.  His  scheme  to 
overturn  the  government  or  dismember  the  confederacy,  if  ever  enter- 
tained, was  an  ambition  like  that  of  a  Cassar ;  the  oriental  imagina- 
tion which  conceived  the  plan  of  an  independent  empire  in  Mexico, 
was  not  unworthy  the  genius  of  a  Bonaparte.  It  would  be  curious  to 
speculate  as  to  the  probable  destiny  of  the  Spanish  races  on  this 
continent,  if  Burr's  dreams  of  conquest  and  empire  could  have  been 
realized  ;  though  he  might  not  have  wielded  the  power  of  a  Napoleon, 
he  had  at  least  all  the  indomitable  will  and  energy,  and  more  than  the 
ability,  of  a  Francia. 

I  shall  not  dwell  upon  the  various  circumstances  attending  this  cele- 
brated trial,  or  review  in  detail  the  many  grave  questions  raised  and 
discussed  before  the  Chief-Justice,  all  of  which  he  considered  with  an 
excessive  degree  of  care  and  caution,  and  decided  in  a  manner  which 
the  accused  certainly  had  no  right  to  complain  of.  In  the  prosecution 
of  great  State  causes  in  other  countries,  the  influence  of  the  govern- 

*  Says  Mr.  McRae,  in  his  able  argument  on  the  final  and  decisive  motion  in 
the  case  :  "  "We  blame  not  the  prisoner  for  exercising  any  of  those  rights,  which, 
as  a  citizen,  he  is  entitled  to,  and  which  it  were,  perhaps,  a  violation  of  duty  not 
to  exercise  ;  and  no  man's  talents  are  more  competent  to  distinguish  and  assert 
his  rights  than  those  of  the  accused.  "We  object  not  to  his  making  any  such  mo- 
tion as  rightly  belongs  to  his  defence.  But  the  prisoner,  for  the  purpose  of 
escaping  the  eifect  of  the  prosecution  carrying  on  against  him,  has  with  unexam- 
pled dexterity  contrived,  from  the  very  start,  almost  invariably,  to  quit  his  situa- 
tion as  an  accused.  On  every  occasion,  from  the  commencement  to  the  present 
moment,  instead  of  Aaron  Burr  defending  himself,  we  find  him  taking  the  high 
ground  of  public  accuser  and  assailing  others."— 2  Burr-s  Trial,  p.  28. 


JOHN  MARSHALL.  371 

ment  lias  been  usually  able  to  make  itself  felt  through  the  Court ;  but 
the  proceedings  of  this  trial  bore  ample  testimony  that  the  American 
judiciary  were  in  fact,  as  in  name,  independent.  No  government  influ- 
ence could  be  brought  to  bear  down  the  accused  in  that  tribunal 
wherein  John  Marshall  presided,  the  impersonation  of  calm,  unbending, 
inflexible  justice.  Indeed,  he  did  not  escape  the  animadversions  of 
government  for  some  of  his  rulings  on  this  trial,  as  I  shall  presently 
notice  ;  but  none  of  these  served  to  move  him  from  the  strict  line  of 
what  he  regarded  as  his  duty,  or  to  shake  his  firm  purpose.  It  is,  I 
think,  evident  throughout,  that,  while  Marshall  undertook  to  deter- 
mine every  question  presented  to  him,  by  the  rule  of  established  legal 
principles,  yet  it  was  his  aim  in  the  practical  conduct  of  the  trial,  to 
see  that  the  accused  at  least  should  not  have  reason  to  complain  of 
the  slightest  act  of  partiality  or  wrong.  The  principle  which  governed 
his  conduct — and  I  believe  it  must  be  conceded  to  be  not  only  a  liberal 
and  high-minded,  but  correct  rule  of  action  in  the  trial  of  a  criminal, 
and  especially  a  capital  offence — may  be  gathered  from  the  last  sen- 
tence of  the  following  brief  passage  from  his  opinion  on  the  motion  of 
Col.  Burr  for  a  writ  of  subpoena  duces  tecum,  to  the  President  of  the 
United  States,  directing  him  to  produce  a  certain  letter  of  Gen.  "Wil- 
kinson, a  motion  fully  discussed  on  both  sides,  and  warmly  opposed  by 
the  counsel  for  the  government,  on  the  ground,  among  other  things, 
that  the  materiality  of  the  letter  had  not  been  shown.  The  Chief-Jus- 
tice, on  full  consideration,  granted  the  motion.  "  It  is  not  for  the 
Court,"  he  remarks,  "  to  anticipate  the  result  of  the  present  prosecu- 
tion. Should  it  terminate,  as  is  expected,  on  the  part  of  the  "United 
States,  all  those  who  are  concerned  in  it  should  certainly  regret,  that 
a  paper,  which  the  accused  believed  to  be  essential  to  his  defence, 
which  may,  for  aught  that  now  appears,  be  essential,  had  been  with- 
held from  him.  I  will  not  say  that  this  circumstance  would  in  any 
degree  tarnish  the  reputation  of  the  Government ;  but  I  will  say  that 
i*  would  tarnish  the  reputation  of  the  Court,  which  had  given  its 
sanction  to  its  being  withheld.  Might  I  be  permitted  to  utter  one 
sentiment  with  respect  to«myself,  it  would  be  to  deplore  most  earnestly 
the  occasion  which  should  compel  me  to  look  back  on  any  part  of  my 
official  conduct  with  so  much  self-reproach  as  I  should  feel,  could  1 
declare,  on  the  information  now  possessed,  that  the  accused  is  not  en- 


372  LIVES  OF  THE  CHIEF^TUSTICES. 

titled  to  the  letter  in  question,  if  it  should  really  be  important  to 
Mm."* 

The  grand  jury,  consisting  of  some  of  the  most  eminent  citizens  of 
Virginia,t  were  empannelled  and  sworn  on  the  day  of  the  opening  of 
the  Court,  May  22nd,  and  the  Chief-Justice  thereupon  delivered  his 
charge  to  them.  But  it  was  not  until  the  24th  of  June,  and  after 
many  adjournments,  and  protracted  discussions,  in  which  Col.  Burr 
and  all  the  counsel  employed  on  either  side  engaged,  that  the  grand 
jury  brought  in  indictments  against  Aaron  Burr  and  Herman  Blen- 
nerhasset,  for  both  treason  and  misdemeanor.  Burr  thereupon 

*  1  Burr's  Trial,  p.  188. 

f  John  Randolph  was  foreman.  Burr  claimed  the  right  of  challenging  the 
grand  jurors  for  cause,  which  was  allowed.  He  challenged,  however,  only  two  on 
the  panel — Mr.  Giles  and  Col.  Wilson  C.  Nicholas — both  of  whom  bad  served  in 
the  Senate  of  the  United  States.  The  former  gentleman,  he  remarked,  had,  in  his 
public  capacity,  formed  a  decisive  opinion  on  the  case.  "  He  is  one  of  the  last 
men,"  Mr.  Burr  observed,  "  on  whom  I  wish  to  cast  any  rellections.  So  far  from 
having  any  animosity  against  him,  he  would  have  been  one  of  those  whom  I 
would  have  ranked  among  my  personal  friends."  As  to  Col.  Nicholas,  Burr  re- 
marked, that  "  he  has  entertained  a  bitter  personal  animosity  against  me  ;  and 
therefore  I  cannot  expect  from  him  that  pure  impartiality  of  mind  which  is  neces- 
sary to  a  correct  decision."  Both  these  gentlemen,  thereupon,  by  consent,  with- 
drew. 

Major  Eggleson,  one  of  the  jurors,  hereupon  came  forward  and  remarked  that 
he  had  expressed  great  warmth  and  indignation  on  the  subject,  and  believed  it  in- 
delicate for  him  to  serve.  Burr,  however,  declined  taking  any  exception  to  him, 
remarking,  "  There  is  very  little  chance  that  I  can  expect  a  better  man  to  try  my 
cause.  His  desire  to  be  excused,  and  his  opinion  that  his  mind  is  not  free  upon 
the  case,  are  good  reasons  why  he  should  be  excused ;  but  the  candor  of  the  gen- 
tleman in  excepting  to  himself,  leaves  me  ground  to  hope  that  he  will  endeavor  to 
be  impartial." 

John  Randolph  also  wished  to  be  excused,  declaring  that  he  had  "  a  strong  pre- 


MK.  BURK. — "  Really,  I  am  afraid  we  shall  not  be  able  to  find  any  man  without 
this  prepossession." 

CHIEF-JUSTICE. — "  The  rule  is,  that  a  man  must  not  only  have  formed,  but  de- 
clared an  opinion,  in  order  to  exclude  him  from  serving  on  the  jury." 

MB.  RANDOLPH. — "  I  do  not  recollect  to  have  declared  one." 

Mr.  Burr  did  not  object  to  Randolph,  and  he  was  accordingly  sworn  as  foreman 
of  the  jury.— 1  Burr's  Trial,  p.  44. 


JOHN  MARSHALL.  373 

pleaded  not  guilty,  and  was  committed  for  trial.     The  trial  was  post- 
poned to  the  3rd  of  August  following. 

On  that  day  the  Court  again  convened,  and  the  same  counsel  ap- 
peared. Subsequently,  and  about  the  time  of  opening  the  cause  to 
the  jury,  Mr.  Charles  Lee,  ex- Attorney-General  of  the  United  States, 
was  added  to  the  array  of  counsel  for  the  defence.  Two  weeks  were 
consumed  in  the  attempt  to  obtain  a  jury,  the  great  mass  of  those  who 
were  summoned  exhibiting  the  strongest  prepossessions  against  the 
prisoner  and  his  cause.*  During  these  preliminary  arrangements  and 
the  discussions  incident  to  them,  much  asperity  of  feeling  was  at  times 
exhibited  between  the  counsel  on  either  side.  It  was  observed,  how- 
ever, that  the  prisoner  at  the  bar  preserved,  throughout,  the  most  cool 
and  dignified  composure,  not  only  avoiding  everything  like  personality 
himself,  but  imposing  restraint  upon  his  counsel.  The  veteran  Luther 
Martin,  who  defended  Col.  Burr  with  all  the  warmth  and  ardor  of 
friendship,!  could  not  entirely  sjnother  those  feelings  of  indignation 
which  the  vigorous  attacks  of  the  prosecution  excited.  Being  inter- 
rupted by  one  of  the  counsel  for  the  people,  who  suggested  to  him  the 
importance  of  economizing  time,  he  sharply  replied,  "  I  know  what 

*  Most  of  them  were  set  aside  for  cause.  Occasionally,  but  not  often,  Burr  ex- 
ercised his  right  of  peremptory  challenge.  The  first  of  these  peremptory  chal- 
lenges was  of  a  Mr.  Hamilton  Morrison.  After  a  brief  examination,  the  Court 
thought  that  sufficient  cause  had  not  been  shown  against  his  being  a  juror,  and  it 
appears  that  he  was  about  to  be  sworn,  when  the  juror  impudently  remarked,  "  I 
am  surprised  why  they  should  be  in  50  much  terror  of  me.  Perhaps  my  name 
may  be  a  terror,  for  my  first  name  is  Hamilton."  Col.  Burr  quietly  observed  that 
"  that  remark  was  a  sufficient  cause  for  objecting  to  him,"  and  challenged  him ; 
whereupon  Mr.  Hamilton  Morrison  was  set  aside.— 1  Burr's  Trial,  p.  383. 

f  Mr.  Martin,  in  offering  himself  as  one  of  Burr's  bail,  remarked  that  he  was 
happy  to  have  thia  opportunity  to  give  a  public  proof  of  his  confidence  in  the 
honor  of  Col.  Burr,  and  of  his  conviction  that  he  was  innocent.  Indeed,  with 
such  warmth  and  ardor  did  he  enter  into  the  defence,  that  Jefferson,  in  one  of  his 
letters  to  the  District-Attorney,  Mr.  Hay,  hints  at  the  propriety  of  indicting  Mar- 
tin (whom  he  denounces  as  an  "  impudent  Federal  bull-dog"),  as  an  accomplice  of 
Burr. 

It  may  be  added  that  Jefferson's  denunciations  of  Martin  were  repaid  with  in- 
terest I  have  been  told  by  an  eminent  gentleman  of  the  Maryland  bar,  who  was 
well  acquainted,  and  had  practiced  with  Mr.  Martin,  that  it  was  one  of  his  com- 
mon expressions  when  stigmatizing  any  person  with  the  strongest  terms  of  oppro- 
brium, to  say  that  he  was  "  as  great  a  scoundrel  as  Thomas  Jefferson." 


374  LIVES  OP  THE  CHIEF-JUSTICES. 

economy  they  wish.  They  wish  us  to  be  silent  ;  they  would,  if  they 
could,  deprive  Col.  Burr's  counsel  of  an  opportunity  of  defending  him, 
that  they  might  hang  him  up  as  soon  as  yossibk,  to  gratify  themselves 
and  the  government?'  Mr.  McRae  denounced  the  remark  as  "  a  most 
unprincipled  and  unfounded  assertion."  Mr.  Hay  also  warmly  repelled 
the  charge.  The  Chief-Justice,  in  his  calm  and  dignified  way,  at  once 
restored  order.  He  had  hoped  "  that  no  such  allusions  would  have 
been  made  ;  that  the  government  ought  to  be  treated  with  respect, 
and  that  there  was  a  delicacy  to  be  observed  on  that  subject,  from 
which  he  hoped  there  would  be  no  departure  hereafter."  Thereupon 
Col.  Burr  remarKed  :  "I  rose  to  stop  the  progress  of  such  language 
"when  up  before.  I  had  made  sufficient  apologies,  if  any  were  neces- 
sary, for  any  expressions  which  had  been  used,  and  I  had  hoped  that 
no  allusion  would  be  made  to  the  subject.  It  will  be  recollected  that 
I  have  constantly  manifested  my.  displeasure  at  such  expressions.  I 
have  carefully  avoided  such  myself,  and  imposed  similar  restraints  on 
my  counsel ;  and  urged  that  the  government  should  be  treated  with 
the  utmost  delicacy,  though  there  was  great  provocation  from  the 
gentlemen  on  the  part  of  the  prosecution,  which  would  have  justified 
harsh  terms.  I  hope  these  things  will  cease.  On  the  part  of  my 
counsel  I  am  sure  they  will  cease."  * 

*  1  Burr's  Trial,  p.  386.  I  have  remarked  that  Burr  preserved  an  unruffled 
temper  throughout  the  trial,  and  rarely  suffered  himself  to  be  betrayed  into  any- 
thing like  warmth  of  language.  Occasionally,  however*  we  notice  something  of 
the  kind.  On  his  motion  that  the  Court  would  instruct  the  jury  on  certain  special 
points  of  law,  Mr.  Hay  hoped  the  Court  "  would  not  grant  particular  indulgences 
to  Col.  Burr,  who  stood  on  the  same  footing  with  every  other  man  charged  with  a 
crime." 

MR.  BCER.— "  Would  to  God  that  I  did  stand  on  the  same  ground  with  every 
other  man.    This  is  the  first  tune  I  have  ever  been  permitted  to  enjoy  the  rights 
of  a  citizen.    How  have  I  been  brought  hither  ?" 
•  The  CHIEF-JDSTICE  said  it  was  improper  to  go  into  these  digressions. 

Col.  Burr  thereupon  disclaimed  any  desire  to  obtain  other  privileges  and  rights 
than  those  which  belonged  to  every  citizen. 

On  one  occasion,  too,  he  expressed  himself  with  much  asperity,  and  with  a  keen 
and  bitter  sarcasm  upon  what  he  called  "  the  amiable  morality  "  of  the  government. 
Alluding  to  the  arrest  of  his  friends,  the  seizure  of  his  property  and  papers,  and 
an  order  which  had  been  issued,  as  he  says,  to  kill  him  while  descending  the 
Mississippi,  he  remarks : 

"  All  this  may  only  prove  that  my  case  is  a  solitary  exception  from  the  general 


JOHN  MARSHALL.  375 

At  length,  the  jury  being  empannelled  and  sworn,  on  Monday,  the 
1 1th  of  August,  Mr.  Hay  opened  the  case  on  the  part  of  the  prosecu- 
tion. I  shall  not  undertake  to  follow  the  course  of  the  trial,  but  refer 
the  reader  to  the  printed  report  of  it  by  Mr.  David  Robertson,  pub- 
lished at  the  time  in  two  volumes,  containing  the  entire  proceedings, 
including  the  evidence,  the  arguments  of  counsel,  and  the  opinions  of 
the  Court  upon  the  various  motions  made,  and  questions  raised,  during 
the  course  of  the  proceedings. 

The  counsel  for  the  people  having  adduced  their  testimony  relative 
to  the  overt  acts  alleged  in  the  indictment,  namely,  the  hostile  assem- 
blage on  Blennerh  asset  Island  in  the  Ohio  river — at  which  it  was  not 
pretended  that  Col.  Burr  was  present,  he  being  really  at  the  tune 
hundreds  of  miles  distant  from  the  scene  of  action — now  proposed  to 

rule.  The  government  may  be  tender,  mild,  and  humane  to  every  one  but  me. 
If  so,  to  be  sure,  it  is  of  little  consequence  to  any  one  but  myself.  But  surely  I 
must  be  excused  if  I  complain  a  little  of  these  proceedings.  There  seemed  to  be 
something  mingled  in  these  proceedings  which  manifested  a  more  than  usual  in- 
clination to  attain  the  ends  of  justice.  As  far  as  it  related  to  himself  perhaps 
these  things  were  of  no  account ;  but  what  was  then  to  be  said  of  those  and  other 
measures,  such  as  the  suspension  of  the  habeas  corpus  act,  which  concerned  the 
whole  nation  ?  If,  in  the  Island  of  Great  Britain,  such  a  measure  was  calculated  to 
produce  so  much  disturbance,  what  kind  of  sensation  ought  it  to  produce  in  this 
country. 

•'<  Our  President  is  a  lawyer,  and  a  great  one.  too.  He  certainly  ought  to  know 
what  it  is  that  constitutes  a  war.  Six  months  ago  he  proclaimed  that  there  was  a 
civil  war.  And  yet  for  six  months  have  thry  boen  hunting  for  it,  and  still  cannot 
find  one  spot  where  it  existed.  There  was  to  be  sure  a  most  terrible  war  in  the 
newspapers,  but  nowhere  else." 

These  remarks  were  made  on  a  motion  of  Mr.  Hay,  after  the  grand  jury  had 
been  sworn,  and  before  indictment  found,  to  commit  Burr  to  answer  a  charge  of 
treason— a  motion  which  was  denied  by  the  Chief-Justice.— 1  Burr's  Trial,  p.  78. 

During  all  the  proceedings  of  the  trial,  Col.  Burr  manifested  the  fearless  and 
firm  demeanor  of  a  man  who  feels  himself  the  object  of  an  unrelenting  and  unjust 
persecution.  When  his  accuser,  Gen.  Wilkinson,  entered  the  Court,  the  reporter 
says  the  countenance  of  Col.  Burr  was  "  marked  by  a  haughty  contempt."  To 
his  daughter  he  writes  in  the  tone  of  an  injured  and  innocent  man  :  "  You  have 
read  to  vtry  little  purpose,  if  you  have  not  remarked  that  such  things  happen  in 
all  democratic  governments.  Was  there  in  Greece  or  Rome  a  man  of  independ- 
ence, and  supposed  to  possess  great  talents,  who  was  not  the  object  of  vindictive 
and  unrelenting  persecution  ?'' 


3Y6  UWS  OF  THE  CHIEF-JUSTICES. 

connect  him  with  the  transaction  by  collateral  testimony.  Here 
the  counsel  for  the  prisoner  raised  the  objection,  that  no  such  evidence 
could  be  given  under  the  indictment.  It  was  at  once  perceived  that 
the  stress  of  the  case  lay  in  this  objection,  which  Wirt,  in  his  speech, 
very  properly  characterized  as  a  bold  and  original  stroke  in  the  noble 
science  of  defence,  marking  the  genius  and  hand  of  a  master.  The 
discussion  which  arose  upon  it,  resulting  in  a  decision  by  the  Chief- 
Justice,  which  effectually  put  an  end  to  the  prosecution,  was  opened 
by  Mr.  Wickham.  It  lasted  a  week  ;  all  the  counsel  employed  on 
either  side  having  spoken  at  length  upon  the  question,*  and  with  the 
opinion  of  the  Court  thereon,  occupies  the  last  sixty  pages  of  the  first, 
and  the  whole  of  the  second  volume  of  the  report  of  the  trial.  I  de- 
sire to  pass  no  unmeaning  or  exaggerated  eulogy  upon  this  splendid 
display  of  forensic  genius  and  eloquence  ;  and  therefore  shall  merely 
say,  that  it  undoubtedly  presents  us  the  fullest  and  most  perfect  expo- 
sition of  the  law  of  treason,  both  under  the  common  law  and  statutes 
of  England,  and  as  defined  by  the  Federal  Constitution,  to  be  found 
in  the  language.  Every  variety  of  illustration,  every  ingenuity  of 
argument,  the  most  ample  historical  dissertations  upon  the  law  of  trea- 
son, the  fullest  analysis  of  cases,  the  application  of  the  most  hidden 
and  recondite  principles  of  the  common  law — in  short  materials  from 
all  sides  and  from  every  source,  are  pressed  into  the  service  of  these 
masterly  arguments.  Many  parts  of  them  are  embellished  with  a 
richness  of  language,  and  an  elegance  of  rhetoric,  which  serve  ad- 
mirably to  relieve  the  hard  and  dull  outlines  of  a  mere  legal  discus- 
sion. Such  especially  is  the  case  with  the  speech  of  Mr.  Wirt,  who 
may  be  called  the  Sheridan  of  the  prosecution — a  speech  which  ex- 
hibits in  a  felicitious  degree  that  union  of  brilliant  fancy,  eloquence, 
and  legal  acumen,  which  are  displayed,  though  perhaps  not  in  an 
equal  degree,  in  all  the  great  forensie  efforts  of  that  accomplished  law- 
yer. Though  it  may  not  deserve  the  exaggerated  encomium  which 
Burke  in  a  moment  of  ecstacy  bestowed  on  the  effort  of  his  eloquent 
associate  on  the  trial  of  Hastings,  it  certainly  may  claim  its  full  share 

*  The  counsel  spoke  in  the  following  order :  Mr.  Randolph  followed  Mr.  Wick- 
ham.  Mr.  McRae  and  Mr.  Wirt  for  the  people  replied.  Mr.  Botts  followed  for  the 
defence  ;  Mr.  Hay  for  the  prosecution ;  Mr.  Lee  and  Mr.  Martin  for  the  defence, 
aud  Mr.  Randolph  closed  the  argument. 


JOHN  MARSHALL.  377 

of  the  compliment  extorted  from  the  cold  and  calm  judgment  of  Mar- 
shall on  the  bench  :  "  A  degree  of  eloquence  seldom  displayed  on  any 
occasion,  has  embellished  a  solidity  of  argument,  and  a  depth  of  re- 
search, by  which  the  Court  has  been  greatly  aided  in  forming  the 
opinion  it  is  about  to  deliver."  * 

The  Chief-Justice,  in  his  opinion  upon  the  case,  decides,  that  collateral 
testimony  offered  to  show  Col.  Burr's  connexion  with  the  transactions 
on  Blennerhasset's  island  is  inadmissible.  His  conclusion  upon  this 
point  is  sustained  by  a  keen  and  subtle  logic,  and  an  almost  technical 
precision  of  argument,  which,  however,  satisfactory  and  conclusive  to 
the  legal  mind,  does  not  leave  the  case  upon  that  broad  and  high 
ground  of  principle,  where  the  counsel  for  the  defence  had  placed  it ; 
nor  does  it  at  once  strike  the  understanding  as  entirely  consistent 
with  the  rule,  to  which  the  Chief-Justice  still  adhered,  as  laid  down  in 
the  case  of  Bollman  and  Swartwout,  namely,  that  if  "  a  body  of  men 
be  actually  assembled  for  the  purpose  of  effecting  by  force  a  treason- 
able object,  all  those  who  perform  any  part,  however  minute,  or  how- 
ever remote  from  the  scene  of  action,  and  who  are  actually  leagued  in 
the  general  conspiracy,  are  to  be  considered  as  traitors."  How  then,  it 
might  be  asked,  could  the  testimony  offered  to  prove  Burr's  con- 
nexion, though  remote  from  the  scene  of  action,  be  rejected  ?  By  a 
nice,  but  technical,  though  doubtless  strictly  legal  distinction.  The 
overt  act  of  treason  laid  in  the  indictment  was  the  levying  of  war  in 
Blennerhassett's  Island  ; — Burr  was  not  present,  either  in  person  or  in 
contemplation  of  law,  either  actively,  or  constructively  aiding  and 
assisting  in  the  particular  act  there  alleged  to  have  been  committed  ; 
and  whether  that  act  amounted  to  an  act  of  war  or  not  (which  the 
Chief-Justice  intimates  he  would  have  submitted  to  the  jury),  no  proof 
of  any  other  overt  act  could  lawfully  be  given  in  evidence  under  the 
indictment.f 

The  effect  of  the  decision  was,  of  course,  to  cut  off  the  government 
counsel  from  giving  any  evidence  to  connect  Col.  Burr  with  the  trans- 
actions on  Blennerhassett's  Island.  The  prosecution  was  at  an  end. 
The  next  day,  the  jury  having  retired  under  the  charge  of  the  court, 

*  2  Burr's  Trial,  p.  40L 

t  Sec  opinion.    2  Burr's  Trial,  p.  401,  et  seq. 


378  LIVES  OF  THE  CHIEF-JUSTICES. 

brought  in  a  verdict  of  not  guilty,  and  a  similar  fate  met  the  indict- 
ment for  misdemeanor. 

Says  Wirt  in  a  letter  to  a  friend  :  "  Marshall  has  stepped  in  be- 
tween Burr  and  death.  He  has  pronounced  an  opinion  that  our 
evidence  is  all  irrelevant.  Burr  not  having  been  present  at  the  island 
with  the  assemblage,  and  the  act  itself  not  amounting  to  a  levying  of 
war."  *  And  again,  a  fortnight  afterwards  :  "  The  second  prosecu- 
tion against  Burr  is  also  at  an  end  ;  Marshall  again  arrested  the 
evidence.  A  motion  will  be  made  to  commit  him  and  his  confederates 
for  trial  in  Kentucky,  or  wherever  else  the  judge  shall,  from  the  whole 
evidence,  believe  their  crimes  to  have  been  committed.  There  is  no 
knowing  what  will  become  of  the  motion.  I  believe  it  will  be  de- 
feated." f  In  this  Mr.  Wirt  was  mistaken.  Burr  was  held  to  bail  in 
the  sum  of  three  thousand  dollars  to  answer  in  Ohio,  for  a  misde- 
meanor hi  setting  on  foot  a  military  expedition  against  the  territories 
of  Spain.  J  This  decision  seems  to  have  produced  some  disgust  in  the 
mind  of  Burr.  In  a  letter  to  his  daughter  he  remarks  :  "  The  opinion 
was  a  matter  of  regret  and  surprise  to  the  friends  of  the  Chief-Justice, 
and  of  ridicule  to  his  enemies — all  believing  that  it  was  a  sacrifice  of 
'principle  to  conciliate  Jade  Cade."  On  the  other  hand  the  government, 
or  perhaps  it  may  more  correctly  be  said,  prominent  individuals  in 
public  life,  connected  with  the  administration,  did  not  fail  to  animad- 
vert strongly  upon  the  conduct  and  decision  of  Marshall  during  the 
trial.  It  was  something  of  this  feeling  perhaps  which  induced  a  dis- 
tinguished senator  from  Virginia,  §  to  introduce  a  bill  at  the  next 
session  of  Congress,  defining  treason,  which  he  claimed  the  legislative 
body  had  a  constitutional  right  to  do.  Upon  this  occasion  he  attacked 
the  opinions  of  the  Chief-Justice  with  great  warmth  and  boldness,  re- 
marking, among  other  things,  "  I  have  learned  that  judicial  opinions  on 

*  Wirt's  letter  bears  date  only  the  day  after  the  decision  was  pronounced,  and 
he  must  have  misunderstood  that  part  of  the  opinion.  The  Chief-Justice  did  not 
decide  that  the  transaction  on  Blennerhassett's  Island  did  not  amount  to  a  levy- 
ing of  war.  He  would  have  been  disposed,  he  remarks,  to  leave  it  as  question  of 
fact  for  the  jury,  but  the  point  was  not  to  be  understood  as  decided. — 2  Burr's 
Trial,  p.  422. 

t  Wirt  to  Dabney  Carr.    1  Kennedy's  Life  of  Wirt,  p.  205. 

J  He  did  not  appear,  and  the  recognizance  was  forfeited. 

§  Mr.  Giles. 


JOHN  MARSHALL.  379 

this  subject  are  like  changeable  silks,  which  vary  their  colors  as  they  are 
held  up  in  political  sunshine."  But  arrows  like  these  fell  innocuous 
at  the  feet  of  the  Chief-Justice.  The  purity  of  his  motives,  the  eleva- 
tion of  his  mind,  and  the  integrity  of  his  character,  were  proof  against 
all  such  attacks.  He  held  no  opinions  to  propitiate  the  government, 
none  to  conciliate  the  favor  of  "  Jack  Cade." 

"'Why  did  you  not  tell  Judge  Marshall  that  the  people  of  America 
demanded  a  conviction  ?"  was  the  question  put  to  Wirt,  after  the 
trial.  "  Tell  him  that !"  was  the  reply.  "  I  would  as  soon  have 
gone  to  Herschel,  and  told  him  that  the  people  of  America  insisted 
that  the  moon  had  horns  as  a  reason  why  he  should  draw  her  with 
them." 

The  law  of  prize  and  Admiralty  jurisdiction  formed  one  of  the  most  im- 
portant branches  of  jurisprudence  administered  in  the  Federal  tribunals 
during  Marshall's  term  of  service.  Hitherto  this  department  of  the  law 
had  received  but  little  attention  either  in  our  own  country  or  in  England. 
Sir  William  Scott,  appointed  to  the  bench  in  England  in  1798,  was 
the  first  to  raise  it  into  respectability  in  that  country,  and  by  his 
elaborate  and  luminous  opinions,  published  in  Robinson's  Reports, 
he  prepared  the  way  for  that  liberal  and  enlightened  code  of  American 
prize  law,  which  the  judgments  and  decisions  of  Marshall  and  Story 
may  be  said  to  have  created.  In  the  preceding  sketches  of  Marshall's 
predecessors  I  have  noticed  nearly  all  the  important  cases  of  Admiralty 
and  prize  law  decided  in  the  Supreme  Court  up  to  the  time  he  came 
upon  the  bench.  For  several  years  subsequent  to  this  period,  and  as 
late  as  the  argument  of  the  celebrated  case  of  Rose  vs.  Himely,*  in 
the  winter  of  1808,  very  few  contributions  to  this  branch  of  law-learn- 
ing had  been  made  by  the  American  Courts.  These  contributions 
were  all  to  be  found  in  the  few  cases  reported  in  Dallas,  and  the 
earlier  volumes  of  Cranch,  together  with  a  small  volume  of  decisions  in 
the  South  Carolina  Courts,  by  Judge  Bee.  "  It  is  a  beautiful  sci- 
ence," says  Judge  Story,  two  or  three  years  later ;  but  at  the  same 
time  it  was  for  all  practical  purposes  a  new  science  ;  for,  with  the  ex- 
ception of  these  American  cases  and  the  four  or  five  volumes  of  Robin- 
son's Admiralty  Reports  then  published,  very  little  useful  rending 
*  4  Cranclrs  Reports,  241 


380  LIVES  OP  THE  CHIEF-JUSTICES. 

was  within  reach  of  the  lawyer,  except  one  or  two  treatises  or 
essays,  and  a  few  brief  notes  to  collections  of  Admiralty  forms  and 
precedents. 

The  non-intercourse  and  embargo  acts,  as  the  biographer  of  Story 
very  correctly  observes,  created  cases  confessedly  new  in  their  charac- 
ter, and  which  were  not  only  without  precedent,  but  beyond  the  reach 
of  established  rules.  It  became,  therefore,  necessary  to  build  up  a 
new  body  of  law,  to  open  untrodden  paths,  to  reduce  general  princi- 
ples to  specific  form  and  practice,  to  apply  settled  rules  to  curious  and 
complicated  facts,  and  to  educe  from  conflicting  elements  clear,  just, 
and  practical  doctrines.  Cases  occurred  which  had  never  before  pre- 
sented themselves  in  a  similar  aspect.  The  conflicting  rights  of  cap- 
tors and  claimants,  of  neutrals  and  belligerents,  trading  under  licenses, 
or  privateering  under  letters  of  marque  and  reprisal,  were  to  be 
adjusted.  And  the  Court,  whose  duty  it  was  to  decide  upon  these 
important  subjects,  was  forced  to  act  comparatively  without  a  guide, 
and  of  ten  tunes  to  create  the  law  of  the  case.* 

One  of  the  most  important  of  the  earlier  cases  before  Chief-Justice 
Marshall  was  the  case  I  have  just  alluded  to,  Rose  vs.  Ifimely, 
which  involved  the  question  whether  the  Courts  of  this  country  can 
examine  the  authority  of  a  foreign  tribunal  acting  «as  a  prize  court, 
and  can  disregard  its  sentence  condemning  a  vessel  as  prize  of  war  ; 
and  if  so,  whether  such  sentence  of  a  foreign  tribunal  is  valid,  when 
the  vessel  at  the  time  is  actually  lying  in  an  American  port.  The 
case  received  additional  importance  from  the  fact  that  several  causes 
from  South  Carolina,  Maryland,  and  Pennsylvania  depended  on  the 
the  decision  of  the  same  principle.  The  gentlemen  engaged  upon  all 
these  causes  were,  therefore,  suffered  to  be  heard  upon  this  argument, 
and  a  more  formidable  array  of  counsel  had  certainly  never  appeared 
at  the  bar  of  the  Supreme  Court.  For  the  appellant  were  Mr. 
Charles  Lee,  Mr.  Harper,  Mr.  S.  Chase,  Jan.,  Mr.  Dallas,  Mr.  Rawle, 
Mr.  Ingersoll,  and  Mr.  Drayton.  For  the  respondent — Mr.  Dupon- 
ceau,  Mr.  E.  Tilghman,  and  Mr.  Martin.  The  argument  lasted  nine 
days,  three  of  which  were  consumed  by  the  speech  of  Luther  Martin 
alone,  as  we  are  assured  by  a  spectator  whom  Mr.  Martin  "  fatigued 
almost  to  death  "  f 

*  1  Story's  Life  and  Letters,  226,  227. 

+  Judge  Story,  who,  while  on  his  second  visit  to  Washington,  was  present  at  this 


JOHN  MARSHALL.  381 

The  decision  of  the  Court  was  prouounced  by  the  Chief-Justice, 

clear,  luminous,  argumentative,  pointed,  and  brief— travelling  not  far 
for  illustration—  alluding  to  but  few  decisions,  and  these  only  the  de- 
argument.  In  a  letter  to  a  friend  he  has  given  brief  sketches  of  the  counsel  en- 
gaged in  it,  which  are  too  interesting  to  be  omitted  : 

"  Harper  is  diffuse,  but  methodical  and  clear ;  he  argues  with  considerable 
warmth,  and  seems  to  depend  upon  the  deliberate  suggestions  of  his  mind.  I  in- 
cline to  think  that  he  studies  his  cause  with  great  diligence,  and  is  to  be  considered 
as  in  some  degree  artificial. 

"  Duponceau  is  a  Frenchman  by  birth,  and  a  very  ingenious  counsellor  at  Phila- 
delphia, He  has  the  reputation  of  great  subtilty  and  acuteness,  and  is  excessively 
minute  in  the  display  of  his  learning.  His  manner  is  animated  but  not  im- 
pressive, and  he  betrays  at  every  turn  the  impatience  and  the  casuistry  of  his 
nation.  His  countenance  is  striking,  his  figure  rather  awkward.  A  small,  spark- 
ling black  eye,  and  a  thin  face,  satisfy  you  that  he  is  not  without  quickness  of 
inind ;  yet  he  seemed  to  me  to  exhaust  himself  in  petty  distinctions,  and  in  a  per- 
petual recurrence  to  doubtful,  if  not  to  inconclusive  arguments.  His  reasoning 
was  rather  sprightly  and  plausible,  than  logical  and  coercive ;  in  short,  he  is  a 
French  advocate. 

"  Tilghman  is  quite  an  old  man,  of  an  unpromising  appearance  ;  his  face  indi- 
cates rather  a  simplicity  and  weakness  of  character.  Indeed,  when  I-firs't  sfcw 
him,  I  could  not  persuade  myself  that  he  possessed  any  talent.  I  heard  his  argu- 
ment, and  it  was  strong,  clear,  pointed,  and  logical.  Though  his  manner  was  bad, 
and  his  pronunciation  not  agreeable,  every  person  listened  with  attention,  and 
none  were  disappointed. 

"  Rawle  is  quite  a  plain,  but  genteel  man,  and  looks  like  a  studious,  ingenious, 
and  able  lawyer.  He  argues  with  a  pleasant  voice,  and  has  great  neatness,  per- 
spicacity, and  even  elegance.  He  keeps  his  object  steadily  in  view ;  he  distin- 
guishes with  care,  enforces  with  strength,  and  if  he  fails  to  convince,  he  eeldom 
spends  his  thoughts  vainly. 

"  Ingersoll  has  rather  a  peculiar  face,  and  yet  in  person  or  manner  has  nothing 
which  interests  in  a  high  degree.  He  is  more  animated  than  Rawle,  but  has  less 
precision ;  he  is  learned,  laborious,  and  minute,  not  eloquent,  nor  declamatory, 
but  diffuse.  The  Pennsylvanians  consider  him  a  perfect  drag-net,  that  gathers 
everything  in  its  course. 

"  Dallas  is  a  book  man,  ready,  apt,  and  loquacious,  but  artificial.  He  is  of  a 
strong,  robust  figure,  but  his  voice  seems  shrill  and  half  obstructed.  He  grows 
warm  by  method,  and  cools  in  the  same  manner.  He  wearies  with  frequent  em- 
phasis on  subordinate  points;  but  he  cannot  be  considered  as  unscientific  or 
wandering. 

"  Lee,  of  Virginia,  is  a  thin,  spare,  short  man ;  you  cannot  believe  that  ho  was 
Attorney-General  of  the  United  States.  I  heard  him  speak  for  a  few  minutes,  but 
the  impression  is  so  faint,  that  I  cannot  analyse  it" 


382  LIVES  OF  THE  CHIEF-JUSTICES. 

cisions  of  Sir  William  Scott,  in  the  English  Admiralty  Court — he 
arrives  at  his  conclusions  by  a  process  of  that  same  simple  and  per- 
spicuous reasoning  which  characterizes  all  his  juridical  arguments.  The 
principles  established  by  it  are,  that  the  jurisdiction  of  a  foreign  tribu- 
nal may  be  examined  in  the  Supreme  Court  of  this  country,  and  if 
such  tribunal  cannot,  consistently  with  the  law  of  nations,  exercise  the 
jurisdiction  which  it  has  assumed,  its  sentence  is  to  be  disregarded. 
That  in  the  case  at  bar,  the  sentence  of  the  tribunal — a  French 
Court  sitting  at  St.  Domingo — was  invalid,  the  captured  vessel  never 
having  been  carried  within  its  jurisdiction,  and  actually  lying  in  the 
port  of  Charleston  when  the  sentence  of  condemnation  was  passed. 
The  Chief-Justice  further  laid  down  the  rule,  in  which  he  was  sustained 
by  a  majority  of  the  Court,  that  though  the  rights  of  war  might  be 
exercised  by  a  country  on  the  high  seas,  yet  that  the  legislation  of 
every  country  being  territorial,  its  rights  of  sovereignty  in  the  execu- 
tion of  a  mere  municipal  law  must  be  exercised  within  its  own  terri- 
tory ;  and  therefore  that  the  seizure  of  a  vessel,  not  belonging  to  a 
subject,  made  on  the  high  seas,  for  the  breach  of  a  municipal  regula- 
tion, as  was  the  case  with  regard  to  the  vessel  in  controversy,  was  an 
act  which  the  sovereign  could  not  authorize,  and  such  seizure  was 
totally  invalid.  To  this  last  proposition  Judges  Livingston,  Gushing, 
and  Chase,  though  concurring  in  the  general  decision,  did  not  accede. 

Story  next  comes  to  Luther  Martin,  "  that  compound  of  strange  qualities,"  who 
seems  to  have  impressed  him  less  favorably  than  either  of  the  others.  One  can 
scarcely  believe  that  his  description  does  full  justice  to  that  distinguished  gen- 
tleman : 

"  He  is  about  the  middle  size,  a  little  bald,  with  a  common  forehead,  pointed 
nose,  inexpressive  eye,  large  mouth,  and  well-formed  chin.  His  dress  is  slovenly. 
You  cannot  believe  him  a  great  man.  Nothing  in  his  voice,  his  action,  his  lan- 
guage impresses.  Of  all  men  he  is  the  most  desultory,  wandering,  and  inac- 
curate. Errors  in  grammar,  and,  indeed,  an  unexampled  laxity  of  speech  mark 
him  everywhere.  All  nature  pays  contribution  to  his  argument,  if,  indeed,  it  can 
be  called  one.  You  might  hear  him  for  three  hours,  and  he  would  neither  en- 
lighten nor  amuse  you ;  but  amid  the  abundance  of  chaff  is  excellent  wheat ;  and, 
if  you  can  find  it,  the  quality  is  of  the  first  order.  ****** 
He  did  not  strike  me  at  all,  and  if  I  were  to  judge  solely  from  that  effort,  I  should 
say  that  he  was  greatly  overrated.  But  every  one  assures  me  that  he  is  pro- 
foundly learned,  and  that  though  he  shines  not  now  in  the  lustre  of  his  former 
days,  yet  he  is  at  times  very  great."— Life  and  Writings  of  Story,  Vol.  I.  pages 
123,124. 


JOHN    MARSHALL.  333 

The  case  of  Hudson  and  others  vs.  Gruestier,  which  was  decided 
the  same  day,  differed  from  the  case  of  Rose  vs.  Himely  in  one  point, 
namely,  that  the  captured  vessel,  the  Sea,  Flower,  was  seized  within 
the  territorial  jurisdiction  of  St.  Domingo,  and  had  been  carried  into 
a  Spanish  port  in  the  isle  of  Cuba.  The  question  therefore  which 
arose  was,  whether  the  Court  of  the  captor  lost  its  jurisdiction  over 
the  -captured  vessel  by  its  being  carried  into  a  neutral  port.  The 
Court  decided  in  favor  of  the  jurisdiction  of  the  foreign  tribunal,  hold- 
ing the  possession  of  the  captors  in  a  neutral  port,  to  be  the  posses- 
sion of  the  sovereign.  This  point  was  held  by  a  majority  of  the 
judges,*  and  the  question  was  accordingly  regarded  as  settled. 

But  the  principle  laid  down  by  the  Chief-Justice  in  Rose  vs.  Hime- 
ly, that  the  seizure  of  a  vessel  on  the  high  seas  beyond  the  jurisdic- 
tion of  the  sovereign,  for  the  mere  breach  of  a  municipal  regulation, 
was  invalid,  and  conferred  no  jurisdiction,  was  not  considered  as  set- 
tled. Accordingly,  at  the  term  of  the  Court,  in  1810,  the  case  of 
Hudson  vs.  Gruestier  again  came  up  for  argument  on  a  new  state  of 
facts,  from  which  it  appeared  that  the  Sea  Flower  had  actually  been 
captured  beyond  the  jurisdiction  of  St.  Domingo,  and  had  been  carried 
into  the  neutral  port  of  Baracoa,  in  the  isle  of  Cuba.  The  point, 
that  the  French  Court  had  jurisdiction,  notwithstanding  the  captured 
vessel  lay  within  a  neutral  port,  being  considered  as  settled  by  the 
former  decision,  the  sole  remaining  question  was,  whether  the  capture 
beyond  the  territorial  jurisdiction  of  St.  Domingo  was  Talid.  Mr. 
JUSTICE  LIVINGSTON  delivered  the  opinion  of  the  Court  in  favor  of  the 
jurisdiction,  overruling  the  doctrine  of  the  Chief-Justice  in  Rose  vs.' 
Himely,  amd  in  this  opinion  all  the  judges  except  the  Chief-Justice 
concurred.f 

*  Justice  Livingston  and  one  other  of  the  judges  dissecting. 

t  6  Cranch,  281.  The  decision  in  Rose  vs.  Himely  is  qualified  in  another  re- 
spect by  the  subsequent  case  of  Williams  and  others  vs.  Amroyd  and  others,  at  the 
term  of  the  Court  in  1813.  In  that  case  it  is  said  to  be  settled  by  the  decision  of 
Hudson  vs.  Guestier,  that  the  sentence  of  a  competent  Court  proceeding  in  rem. 
is  conclusive  with  respect  to  the  thing  itself.  No  Court  of  co-ordinate  jurisdiction 
can  examine  the  sentence ;  and  though  a  foreign  tribunal  should  condemn  Amer- 
ican neutral  property  under  an  edict  unjust  in  itself,  contrary  to  the  law  of  nations, 
and  in  violation  of  neutral  rights,  as  declared  by  the  executive  and  legislative 
authority  of  the  United  States,  yet  the  Courts  of  this  country  cannot  lend  their 


384:  LIVES  OF  THE  CHIEFJUSTICES. 

This  important  branch  of  jurisprudence,  •  namely,  Admiralty  and 
Prize  law — which  subsequently  grew  up  into  a  system  in  the  Federal 
tribunals — received  a  new  impulse  at  the  breaking  out  of  the  war,  and 
after  the  accession  of  Judge  Story  to  the  national  judiciary. 

That  eminent  jurist  took  his  seat  on  the  bench  at  the  term  held  in 
February,  1812,*  filling  the  vacancy  occasioned  by  the  death  of 
Judge  Gushing.  Another  vacancy  had  also  recently  occurred  by  the 
death  of  Judge  Chase,  which  vacancy  had  been  filled  by  the  appoint- 
ment of  Gabriel  Duval,  of  Maryland.  In  other  respects  no  change 
had  been  made  since  the  appointment  of  Mr.  Justice  Todd,  in  1807 

From  the  correspondence  of  Judge  Story  at  this  period,  we  derive 
some  interesting  details  relative  to  the  mode  of  life  of  the  judges  at 
these  general  terms  of  the  Court,  and  their  manner  of  dispatching 
business.  They  lived  together  on  terms  of  the  most  frank  and  un- 
affected intimacy :  "  Our  intercourse,"  he  writes,  "  is  perfectly  familiar 
and  unconstrained,  and  our  social  hours,  when  undisturbed  with  the 
labors  of  law,  are  passed  in  gay  and  frank  conversation,  which  at  once 
enlivens  and  instructs."  "f" 

The  mode  of  arguing  causes  in  the  Supreme  Court  at  that  day  was 
excessively  tedious  and  prolix.  Long  Chancery  bills  with  overloaded 
documents,  and  long  common  law  records,  with  scores  of  bills  of  excep- 
tions attached  to  them,  crowded  the  docket.  I  have  mentioned  the 
three  days'  speech  of  Luther  Martin  in  the  argument  of  a  single  case 
which  lasted  nine  days.  Though  this  was  not,  perhaps,  a  common 
occurrence,  still  it  was  no  unusual  thing  for  a  cause  to  consume  three 
or  four  days  in  the  argument.J  One  lasted  five  days  at  the  term 
aid  to  the  owner  to  recover  such  property,  because  they  cannot  revise,  correct,  or 
even  examine  the  sentence  of  the  foreign  tribunal.  7  Cranch  Reports,  423. 

*  He  was  appointed  toward  the  close  of  the  year  1811,  the  office  having  been 
first  tendered  to  Levi  Lincoln,  and  afterwards  to  John  Quincy  Adams,  by  both 
of  whom  it  was  declined.  At  the  time  of  Story's  appointment  he  was  but  thirty- 
two  years  of  age,  and  the  youngest  judge  ever  raised  to  the  bench  of  the  Supreme 
Court. 

t  Letter  to  his  wife.    March  5th,  1812.— Life  and  Letters,  Vol.  I.  p.  217. 

t  The  Chief-Justice  was  one  of  the  most  patient  listeners  that  ever  sat  on  the 
bench.  "  His  patience,"  saya  Mr.  Binney,  "was  never  surpassed; — patience  to 
hear  that  which  he  knew  already,  that  which  he  disapproved,  that  which  ques- 
tioned himself.  When  he  ceased  to  hear  it  was  not  because  his  patience  was  ex- 
hausted, but  because  it  ceased  to  be  a  virtue.  Whether  the  argument  was  ani- 


JOHN  MARSHALL.  385 

when  Story  first  took  his  seat,  and  in  this  case  he  says  a  printed  brief 
of  two  hundred  and  thirty  pages  was  put  into  his  hands  in  addition. 
The  two  hours'  rule,  subsequently  adopted,  was  not  then  in  vogue  to 
cut  short  prolixity  and  arrest  dullness.  The  labor  of  these  heavy 
causes,  however,  was  much  relieved  by  the  mode  adopted  by  the 
judges,  of  mooting  questions  as  the  argument  proceeded,  and  discuss- 
ing them  step  by  step,  in  familiar  conversation,  at  their  lodgings.  In 
this  way,  remarks  Story,  we  often  came  to  a  very  quick  and  very 
accurate  opinion  in  a  few  hours. 

About  this  period  the  celebrated  William  Pinkney,  of  Maryland, 
re-appeared  at  the  bar  of  the  Supreme  Court,  and  entered  upon 
that  brilliant  career,  which  is  almost  without  a  parallel  in  the  his- 
tory of  the  profession.  With  the  exception  of  two  years — from 
1804  to  1806 — Pinkney  had  been  entirely  withdrawn  from  the  prac- 
tice of  law  for  the  period  of  fifteen  years,  during  the  greater  part  of 
which  time  he  had  filled  important  official  stations  abroad.  Return- 
ing to  America  in  1811,  he  was  soon  afterwards  appointed  Attorney- 
General  of  the  United  States  by  President  Madison,  and  attended  the 
Supreme  Court  for  the  first  time  at  the  February  term,  1812.* 

mated  or  dull,  instructive  or  superficial,  the  regard  of  his  expressive  eye  was  an 
assurance  that  nothing  that  ought  to  affect  the  cause  was  lost  by  inattention  or 
indifference,  and  the  courtesy  of  his  general  manner  was  only  so  far  restrained  on 
the  bench,  as  was  necessary  for  the  dignity  of  office  and  the  suppression  of  famili- 
arity." An  anecdote,  related  of  Marshall  I  believe  by  Judge  Story,  pleasantly 
illustrates  these  characteristics.  A  tedious  advocate  was  drawing  out  a  protracted 
and  wearisome  argument,  in  which  he  discussed  a  thousand  trivial  and  unimpor- 
tant principles,  and  advanced  again  and  again  the  most  trite  and  familiar  propo- 
sitions. The  Chief-Justice  listened  to  the  speaker  with  profound  attention  until 
"  patience  had  ceased  to  be  a  virtue,"  when  he  interrupted  him  in  his  usual  placid 
and  affable  manner,  with  the  remark :  "  Mr. ,  I  think  this  is  unneces- 
sary. There  are  some  things  which  a  Court,  constituted  as  this  is,  may  be  pre- 
sumed to  know." 

*  The  first  case  argued  by  Mr.  Pinkney,  after  his  appointment  as  Attorney- 
General,  was  a  Maryland  case— Le  Roy  vs.  The  Maryland  Insurance  Company. 
A  crowded  audience  had  assembled  to  hear  him,  and  Pinkney,  who  had  been 
keeping  the  public  some  time  in  suspense  as  to  his  dibut,  exerted  himself  to  the 
utmost,  and  -with  distinguished  success.  Messrs.  Winder  and  Harper  were  for  the 
plaintiffs,  and  Luther  Martin,  then  Attorney-General  of  Maryland,  was  associated 
with  Pinkney  for  the  defendants.  This,  as  I  have  remarked,  was  the  first  term 
of  Judge  Story  on  the  bench  of  the  Supreme  Court.  In  a  letter  to  a  friend.  Story 
25 


386  LIVES  OF  THE  CHIEF-JOSTICES. 

Pinkney  was  admirably  fitted  for  this  appointment  at  a  time  when 
questions  of  prize  law  were  constantly  arising  in  the  Federal  Courts. 
During  the  six  or  seven  years  in  which  he  had  officiated  in  England 
as  one  of  the  commissioners  under  Jay's  treaty,  he  had  acquired  an 
extensive  and  thorough  knowledge  of  the  principles  applicable  to 
these  subjects,  having  been  almost  constantly  engaged  in  the  investiga- 
tion of  cases  turning  upon  the  law  and  practice  of  prize  courts,  the 
rights  of  belligerents  and  neutrals,  the  law  of  contraband,  block- 
ade, &c. 

One  of  the  earliest  causes  in  which  Pinckney  was  engaged  was  that 
of  the  Exchange,*  in  which  the  Chief- Justice  was  called  upon  to  con- 
sider and  determine  some  very  delicate,  as  well  as  intricate  questions 
of  international  law  connected  with  Admiralty  jurisdiction.  The 
Exchange,  an  American  merchant  ship,  had  been  captured  by  a 
French  vessel  under  Napoleon's  decree  of  Rambouillet.  Having  been 
commissioned  in  the  French  service,  and  sailing  as  a  French  vessel,  she 
had  put  into  the  port  of  Philadelphia,  in  distress,  where  she  had  been 
proceeded  against  by  the  American  owners.  The  French  minister 
thereupon  interposed  the  claim  (which  was  sustained  by  the  Attorney- 
General,  Mr.  Pinkney,  and  Mr.  Dallas,  the  District- Attorney  of 
Pennsylvania),  that,  being  a  French  national  vessel,  she  was  not 
amenable  to  judicial  process  ;  and  that  the  original  seizure  was  a 
question  of  state  to  be  settled  by  negotiation,  and  was  not  a  question 
to  be  settled  in  an  American  Court  of  Admiralty.  These  positions, 
which  we  are  told  by  the  biographer  of  Pinkney,  he  sustained  with  a 
force  of  argument,  an  eloquence,  and  an  extent  of  learning  which 
raised  him  in  the  public  estimation  to  the  head  of  the  American  bar, 
were  subsequently  made  the  judgment  of  the  Court.  The  question 

alludes  to  the  argument  of  this  case,  and  gives  his  earliest  impression  of  Pink- 
ney. Winder,  he  says,  was  smart  and  striking ;  Harper  adroit  and  able  ;  Martin 
heavy,  unmethodical,  and  inaccurate ;  but  Pinkney  was,  to  the  mind  of  the 
young  Judge,  the  Ajax  of  the  argument.  "  His  speech,"  says  Story,  after  briefly 
alluding  to  his  defective  voice,  and  vehement  manner, "  was  admirable,  his  language 
fluent  and  select,  elegant,  glowing,  fiery — the  ardentia  verba  of  oratory — and  his 
logic  was  conceived  with  a  cogency  that  bore  itself  in  one  continued  stream  of 
reasoning : 

'  Wave  followed  wave,  nor  spent  its  force  in  vain.' " 
*  7  Cranch  Rep.  116  to  147. 


JOHN  MARSHALL.  38? 

was  a  novel  one,  so  far  as  the  Courts  of  this  country  were  concerned  ; 
and,  indeed,  very  little  light  had  been  thrown  upon  it  by  any  adjudged 
case  in  England..  The  Chief-Justice  remarks  in  his  opinion  that  in 
exploring  an  unbeaten  path,  with  few,  if  any,  aids  from  precedents  or 
written  law,  the  Court  had  found  it  necessary  to  rely  much  on  general 
principles,  and  on  a  train  of  reasoning  founded  on  cases  in  some  degree 
analogous  to  this.  Following  this  course  of  reasoning,  and  applying 
these  principles,  he  arrives  at  a  conclusion  which  is  based  doubtless 
upon  the  highest  and  most  liberal  principles  of  comity  and  inter- 
national law — namely,  that  notwithstanding  the  vessel  might  have 
been  the  property  of  the  libellants,  yet  her  capture  and  commission  in 
the  service  of  the  French  Emperor  stamped  her  with  the  character  of 
foreign  nationality,  and  having  necessarily  entered  within  an  Ameri- 
can port,  and  demeaning  herself  in  a  friendly  manner,  she  was  entitled 
to  be  treated  in  the  same  manner  as  any  other  public  armed  vessel  of 
the  French  Emperor,  with  whom  we  were  at  peace,  and  was  exempt 
from  the  jurisdiction  of  the  country. 

I  shall  notice  but  one  other  of  these  Admiralty  cases  argued  before, 
and  decided  by,  the  Chief-Justice — namely,  the  celebrated  case  of  the 
Nereide.  This  case  came  before  the  Court  at  the  memorable  session 
of  1815 — a  session  which  called  out  a  more  brilliant  and  imposing  dis- 
play of  forensic  eloquence  and  argument,  than  had  ever  before  or 
perhaps  has  ever  since,  at  any  one  time,  been  witnessed  in  the  Supreme 
Court.  As  a  proof  of  this  it  is  but  necessary  to  mention  the  names 
of  some  of  the  eminent  and  able  counsel  engaged  in  various  causes 
during  the  session,  such  as  Pinkney,  Dexter,  Harper,  Jones,  Stock- 
ton, Emmett,  Hoffman,  Ogden,  Wells,  Webster,  and  Clay.  Some  of 
these  now  appeared  for  the  first  time  in  that  august  tribunal,  among 
whom  was  the  celebrated  Irish  exile,  Thomas  Addis  Emmett,  of  New 
York.*  Mr.  Emmett  was  employed  in  some  important  prize  causes. 

*  Mr.  Emmett  appeared  frequently  at  the  bar  of  the  Supreme  Court  after  this 
period,  and  in  almost  every  variety  of  causes.  Judge  Story,  who  always  ex- 
pressed the  highest  respect  for  his  talents  and  character,  speaks  of  him  as  follows : 
"  His  mind  possessed  a  good  deal  of  the  fervor  which  characterizes  his  country- 
men. It  was  quick,  vigorous,  searching,  and  buoyant.  He  kindbd  as  he  spoke. 
There  was  a  spontaneous  combustion,  as  it  were,  not  sparkling,  but  clear  and 
glowing.  His  rhetoric  was  never  florid  ;  and  his  diction,  though  select  and  pure, 
seemed  the  common  dress  of  his  thoughts,  as  they  arose,  rather  than  any  studied 


388  LIVES  OF  THE  CHIEF-JUSTICES. 

In  two  of  these — the  case  of  the  Mary,  and  that  of  the  Ncreide — he 
was  opposed  by  Pinkney.  He  made  his  debut  in  the  first  of  these 
cases,  in  presence  of  a  large  and  brilliant  audience.  Embarrassed  by 
the  novelty  of  the  scene,  and  his  want  of  familiarity  with  the  subject, 
he  did  not  do  himself  full  justice  in  his  argument,  and  appeared  con- 
scious, says  Judge  Story,  who  was  then  on  the  bench,  that  he  was  not 
making  one  of  his  happiest  efforts.  Pinkney,  on  the  other  hand,  was 
thoroughly  familiar  with  the  whole  range  of  the  discussion,  and,  ex- 
cited by  the  emulation  of  meeting  a  new  adversary,  made  one  of  his 
most  imposing  and  magnificent  speeches.  He,  of  course,  won  an  easy 
victory,  and  pressed  his  advantage  with  infinite  dexterity,  but  with  a 
harshness  of  language,  and  an  overbearing  manner,  which  were  cal- 
culated to  wound  the  sensitive  feelings  of  his  opponent. 

Soon  after,  the  case  of  the  Nereide  was  called  ;  a  brief  statement 
of  the  facts  of  which  will  be  necessary  in  order  to  enable  the  reader 
to  understand  the  positions  taken  by  counsel,  as  well  as  the  judgment 
of  the  Court.  Manuel  Pinto,  a  merchant  of  Buenos  Ayres,  had  char- 
tered the  Nereide,  a  British  armed  vessel,  mounting  sixteen  guns,  to 
transport  a  cargo  belonging  in  part  to  himself  and  others  of  his  coun- 
trymen, from  London  to  Buenos  Ayres.  The  Nerdde  had  been  cap- 
tured, near  Madeira,  after  an  action  of  about  fifteen  minutes,  by  the 
American  privateer,  the  Governor  Tompkins.  Having  been  brought 
into  the  port  of  New  York,  the  vessel  and  cargo  were  libelled,  and 
both  condemned  as  lawful  prize.  From  this  decree  Mr.  Pinto  appealed, 
under  the  claim  that  a  neutral  might  lawfully  employ  an  armed  belli- 
gerent vessel  to  transport  his  goods,  and  that  if  such  vessel  be  cap- 
tured, the  neutral  property  on  board  is  not,  by  the  law  of  nations, 
lawful  prize,  but  must  be  restored  to  the  owner.  Mr.  Emmett,  as 

effort  at  ornament.  Without  being  deficient  in  imagination,  he  seldom  drew  upon 
it  for  resources  to  aid  the  effect  of  his  arguments,  or  to  illustrate  his  thoughts. 
His  object  seemed  to  be,  not  to  excite  wonder  or  surprise,  to  captivate  by  bright 
pictures,  and  varied  images,  and  graceful  groups,  and  startling  apparitions,  but 
by  earnest  and  close  reasoning  to  convince  the  judgment,  or  to  overwhelm  the 
heart  by  awakening  its  most  profound  emotions. 

His  command  over  the  passions  of  others  was  an  instantaneous  and  sympathetic 
action.  The  tones  of  his  voice,  when  he  touched  on  topics  calling  for  deep  feel- 
ing, were  themselves  instinct  with  meaning.  They  were  utterances  of  the  soul  as 
wellasofthelipa." 


JOHN    MARSHALL.  339 

counsel  for  Pinto,  sustained  these  positions.  He  was  opposed  by  Mr. 
Pinkney.  The  former  was  assisted  in  the  argument  by  Mr.  Hoff- 
man, of  New  York,  the  latter  by  Mr.  Dallas,  of  Philadelphia.  The 
question  debated,  it  will  be  seen,  was  one  of  the  most  important  and 
interesting  that  could  possibly  arise  in  the  whole  range  of  that  branch 
of  jurisprudence,  and  the  entire  discussion  was  one  of  surpassing  bril- 
liancy 'and  power.  Emmett  had  recovered  from  his  embarrassment, 
and  made  one  of  his  happiest  and  ablest  efforts.  It  was  in  the  exor- 
dium to  this  speech  that,  after  adverting  in  terms  of  generous  praise 
to  the  fame  and  ability  of  his  opponent,  of  whose  harsh  expressions  in 
the  previous  case  of  the  Mary,  he  had  so  much  reason  to  complain, 
Emmett  made  a  touching  allusion  to  himself,  and  the  misfortunes  and 
sorrows  of  his  own  life  :  "  My  ambition,"  he  said,  "  was  extinguished 
in  my  youth  ;  and  I  am  admonished  by  the  premature  advances  of 
age  not  now  to  attempt  the  dangerous  path  of  fame."  The  pathos  of 
the  illustrious  exile  melted  the  hearts  of  the  audience,  and  many  of 
them,  we  are  told,  were  dissolved  in  tears.* 

The  atonement  of  Pinkney  in  reply  was  ample  as  well  as  appro- 
priate and  delicate.  Alluding  to  the  opposing  counsel,  and  turning  to 
Mr.  Emmett,  he  remarked  :  "  To  one  of  them,  indeed,  I  have  hereto- 
fore given  unintentional  pain  by  observations  to  which  the  influence  of 
accidental  excitement  imparted  the  appearance  of  unkind  criticism. 
The  manner  in  which  he  replied  to  those  observations  reproached  me 
by  its  forbearance  and  urbanity,  and  could  not  fail  to  hasten  the  re- 
pentance which  reflection  alone  would  have  produced,  and  which  I  am 
glad  to  have  so  public  an  occasion  of  avowing.  I  offer  him  a  gra- 
tuitous and  cheerful  atonement — cheerful,  because  it  puts  me  to  rights 
with  myself,  and  because  it  is  tendered,  not  to  ignorance  and  pre- 
sumption, but  to  the  highest  worth  in  intellect  and  morals,  enhanced 
by  such  eloquence  as  few  may  hope  to  equal — to  an  interesting  stran- 
ger whom  adversity  has  tried,  and  affliction  struck  severely  to  the 
heart — to  an  exile  whom  any  country  might  be  proud  to  receive,  and 
every  man  of  a  generous  temper  would  be  ashamed  to  offend.  I  feel 
relieved  by  this  atonement,  and  proceed  with  more  alacrity." 

The  argument  of  Mr.  Pinkney  in  this  great  case  is  admitted  to 

*  Letter  of  Judge  Story  to  Mr.  Sampson.— Story's  MisceUanict,  806. 


390  LIVES   OF  THE  CHIEF-JUSTICES. 

have  been  one  of  the  most  able  and  brilliant  which  he  ever  delivered.* 
It  is  preserved  in  Mr.  Wheaton's  collection  of  his  writings  and  speeches, 
and,  indeed,  is  almost  the  only  one  of  his  legal  arguments  which  re- 
mains in  anything  like  a  tolerable  state  of  preservation.  It  is  cer- 
tainly a  fact,  that  forensic  triumphs  are,  of  alt  popular  triumphs,  the 
most  ephemeral.  Eloquence  of  speech,  more  potent  and  vivid  than 
the  eloquence  of  written  language,  is  less  enduring.  It  is  the  flash  of 
the  lightning,  not  the  steady  effulgence  of  the  noonday  sun  ; — the 
meteor  which  dazzles  for  a  moment,  not  the  serene  and  constant  light 

*  The  following  extract  from  this  speech  may  be  given,  as  an  example,  not  of 
Mr.  Pinkney's  logic,  but  of  that  richness  of  diction,  and  gorgeousness  of  illustra- 
tion with  which  he  was  fond  of  embellishing  his  argument.  He  was  criticising  the 
proposition,  maintained  by  the  counsel  for  the  claimant,  that  an  armed  vessel  of 
the  enemy  might  be  neutral  in  respect  to  her  cargo,  or,  in  other  words,  that  a 
condition  of  neutrality  and  war  might  exist  under  the  same  flag.  Following  up 
the  incongruity  of  this  idea,  Mr.  Pinkney  drew  the  following  bold  and  striking 
flgure  of  the  Ncreide. 

'•'  I  entreat  your  honors  to  endeavor  a  personification  of  this  motley  notion, 
and  to  forgive  me  for  presuming  to  intimate,  that,  if  after  you  have  achieved  it, 
you  pronounce  the  notion  to  be  correct,  you  will  have  gone  a  great  way  to  pre- 
pare us,  by  the  authority  of  your  opinion,  to  receive  as  credible  history,  the  worst 
parts  of  the  mythology  of  the  Pagan  world.  The  Centaur  and  the  Proteus  of 
antiquity  will  be  fabulous  no  longer.  The  prosopopoeia  to  which  I  invite  you  is 
scarcely,  indeed,  within  the  power  of  fancy,  even  in  her  most  riotous  and  caprici- 
ous mood,  when  she  is  best  able  and  most  disposed  to  force  incompatibilities  into 
fleeting  and  shadowy  combination  ;  but  if  you  can  accomplish  it,  it  will  give  you 
something  like  the  kid  and  the  lion,  the  lamb  and  the  tiger,  portentously  incor- 
porated, with  ferocity  and  meekness  co-existent  in  the  result,  and  equal  as  motives 
of  action.  It  will  give  you  a  modern  Amazon,  more  strangely  constituted  than 
those  with  whom  ancient  fable  peopled  the  borders  of  the  Thermodon — her  voice 
compounded  of  the  tremendous  shout  of  the  Minerva  of  Homer,  and  the  gentle 
accents  of  a  shepherdess  of  Arcadia — with  all  the  faculties  and  inclination  of  turbu- 
lent and  masculine  War,  and  all  the  retiring  modesty  of  virgin  Peace.  We  shall 
have  in  one  personage  the  pharctrata  Camilla  of  the  ^Eneid,  and  the  Peneian  maid 
of  the  Metamorphosis.  We  shall  have  Neutrality,  soft  and  gentle,  and  defenceless 
in  herself,  yet  clad  in  the  panoply  of  her  warlike  neighbors — with  the  frown  of 
defiance  upon  her  brow,  and  the  smile  of  conciliation  upon  her  lip — with  the  epcar 
of  Achilles  in  one  hand,  and  a  lying  protestation  of  innocence  and  helplessness 
enfolded  in  the  other.  Nay,  if  I  may  be  allowed  so  bold  a  figure  in  a  mere  legal 
discussion,  we  shall  have  the  branch  of  olive  entwined  around  the  bolt  of  Jove, 
and  Neutrality  in  the  act  of  hurling  the  latter  under  the  deceitful  cover  of  the 
former." 


JOHN  MARSHALL.  391 

of  the  same  star  upon  which  our  fathers  have  gazed,  and  which  our 
children  shall  look  upon  after  us.  Many  of  the  brightest  ornaments 
of  the  legal  profession  thus  live  by  tradition  alone  ;  and  the  light  of 
that  tradition  is  every  day  growing  more  dim  as  we  are  gradually 
withdrawing  farther  from  the  generation  which  witnessed  the  display 
of  their  genius.  Even  Pinkney  himself  was  no  exception  to  the  rul-. 
"  After  all,"  exclaims  Wirt,  in  one  of  his  letters,  alluding  to  Pinkney's 
death,  "  how  long  will  he  be  remembered  ?  He  has  left  no  monu- 
ment of  his  genius  behind  him,  and  posterity  will,  therefore,  know 
nothing  of  such  a  man  but  by  the  report  of  others.  What  should  we 
have  known  of  Hortensius  but  for  Cicero  ?" 

But  to  return  from  this  digression.  Neither  the  logic  nor  the 
eloquence  of  the  counsel  for  the  captors  could  avail  to  carry  with  it 
the  judgment  of  the  Court.  The  Chief-Justice  pronounced  the  deci- 
sion, which,  though  against  Pinkney,  was  coupled  with  a  compliment 
such  as  it  has  rarely  fallen  to  the  lot  of  any  advocate  to  receive  : — 
"  With  a  pencil  dipped  in  the  most  vivid  colors,"  he  says,  "  and  guided 
by  the  hand  of  a  master,  a  splendid  portrait  has  been  drawn,  exhibit- 
ing the  vessel  and  her  freighter,  a,s  forming  a  single  figure,  composed  of 
the  most  discordant  materials  of  Peace  and  War.  So  exquisite  was  the 
skill  of  the  artist,  so  dazzling  the  garb  in  which  the  figure  was  pre- 
sented, that  it  required  the  exercise  of  that  cold  investigating  faculty 
which  ought  always  to  belong  to  those  who  sit  on  this  bench  to  dis- 
cover its  only  imperfection — its  want  of  resemblance" 

The  decision  of  the  Chief-Justice  in  this  case  has  been  regarded, 
and  perhaps  justly,  as  one  of  the  least  satisfactory  ever  pronounced  by 
him  in  this  branch  of  jurisprudence.  Starting  with  the  doctrine, 
which  he  considers  an  admitted  principle  of  the  law  of  nations,  that  a 
neutral  may  lawfully  place  his  goods  on  board  an  unarmed  ship  of  a 
belligerent  nation,  without  losing  their  neutral  character,  he  arrives 
at  the  conclusion  that  the  principle  is  equally  sound  in  its  applicxtion 
to  an  armed  belligerent  vessel,  even  though  forcible  resistance  bo 
made  by  such  vessel,  and  the  neutral  be  on  board  at  the  time,  pro- 
vided he  does  not  aid  in  such  resistance.  This  was  carrying  the 
etiquette  of  international  law  to  its  extreme  limits ;  and,  whatever 
reason  of  dissatisfaction  the  American  captors  may  have  had,  certainly 
foreign  nations  could  have  no  cause  of  complaint.  The  prevailing 


392  LIVES  OF  THE  CHIEF-JUSTICES. 

view  of  the  Court  was  the  more  remarkable,  inasmuch  as  it  was  ad- 
mitted that  it  did  not  rest  on  any  express  authority.  No  similar  case 
could  be  found  ;  and  only  a  few  scanty  materials,  made  up  of  infer- 
ences from  cases  depending  on  other  principles,  had  been  gleaned  from 
the  books  and  employed  by  both  parties  in  the  argument. 

The  conclusions  of  the  Chief-Justice,  which  were  adopted  by  the 
majority  of  the  Court,  were  not  concurred  in  by  two  of  the  Judges. 
One  of  these,  Mr.  Justice  Story,  wrote  a  very  able,  and,  so  far  as  the 
argument  is  concerned,  it  has  been  thought,  a  very  conclusive,  dissent- 
ing opinion.  In  a  letter  to  a  friend,  written  about  the  same  time,  he 
remarks  that  he  never  in  his  whole  life  was  more  thoroughly  satisfied 
that  the  judgment  of  the  Court  was  wrong.  It  may  be  added  that  in 
a  similar  case,  soon  after  brought  to  argument  in  the  English  high 
Court  of  Admiralty,*  that  court  laid  down  a  rule  precisely  the  re- 
verse of  the  principle  established  in  the  Supreme  Court  of  the  United 
States  in  the  case  of  the  Nerdde,  holding,  that  though  neutral  pro- 
perty on  board  a  merchant  vessel  of  a  belligerent  was  protected,  yet, 
if  placed  upon  an  armed  belligerent  ship,  it  would  be  liable,  on  just 
and  sound  principles,  to  condemnation  along  with  the  captured  vessel. 
The  United  States  Supreme  Court,  however,  adhered  to  its  decision, 
and  though  the  same  point  was  subsequently  raised  and  argued  in 
another  case,f  the  Court  refused  to  reverse  the  doctrine  established  in 
the  case  of  the  Nereide,  observing  that  the  rule  was  correct  in  prin- 
ciple, and  the  most  liberal  and  honorable  to  the  jurisprudence  of  this 
country. 

Passing  by  a  variety  of  interesting  and  important  decisions  con- 
nected with  almost  every  branch  of  jurisprudence,  made  by  the  Chief- 
Justice  during  the  last  fifteen  years  of  his  life,  I  propose  to  close 
this  imperfect  retrospect  of  his  judicial  labors  by  a  brief  notice  of  a 
few  of  those  more  prominent  cases  involving  great  questions  of  con- 
stitutional law  which  passed  under  his  review,  and  in  so  doing  shall 
follow  the  chronological  order  of  these  decisions  as  far  as  a  con- 
nected view  of  the  subject  will  admit. 

The  opinions  of  Marshall,  it  is  well  known,  though  not  extreme, 
were  nevertheless  strongly  federal  and  conservative.  The  tendency  of 

*  Case  of  the  Fanny.    1  Dodson,  Admiralty  Rep.  443. 
t  Case  of  the  Jltalanta.    3  Wheaton's  Rep.  409. 


JOHN  MARSHALL.  393 

his  decisions  hitherto  had  been,  and  steadily  continued  to  be,  to  sus- 
tain the  powers  of  the  Federal  government,  and  to  vindicate  the 
authority  of  the  Federal  judiciary,  both  over  the  State  tribunals  and 
State  legislation.  Hence,  in  the  decision  of  those  important  cases  in- 
volving the  subject  of  constitutional  restriction  on  the  powers  of  the 
separate  States,  some  of  which  I  am  now  about  to  notice,  he  is  almost 
always  found  sustaining  the  most  liberal  constructions  in  favor  of  the 
authority  of  the  Federal  government ;  and,  narrowing  down,  so  to 
speak,  within  strict  limits,  the  powers  of  the  States.  Without  under- 
taking to  defend  or  advocate,  upon  original  principles,  the  correctness 
of  some  of  these  decisions,  particularly  one  which  will  presently  be 
noticed,*  it  is  sufficient  to  say  that  most  of  them  have  been  since 
acquiesced  in,  and  may  now  be  regarded,  so  far  as  judicial  authority 
can  establish  constitutional  constructions,  as  the  settled  law  of  our 
highest  tribunal. 

I  have  noticed  on  a  preceding  page  the  case  of  The  United  States  va 
Peters,  f  in  which  he  held  that  a  State  legislature  could  not  annul  the 
judgments,  or  determine  the  jurisdiction  of  the  Courts  of  the  United 
States  ;  and  also  the  case  of  Fletcher  vs.  Peck,  J  deciding  that  a  party 
could  not,  consistently  with  the  Constitution,  annul  his  own  grant, 
even  if  such  party  were  a  sovereign  State.  The  case  of  Terret  vs. 
Taylor,  §  which  was  argued  at  the  same  term  with  the  Nereide,  fol- 
lowed, wherein  Mr.  Justice  Story  delivered  the  opinion  of  the  Court, 
holding  that  a  State  legislature  could  not  repeal  statutes  creating 
private  corporations,  or  confirming  to  them  property  already  acquired 
under  the  faith  of  previous  laws. 

The  authority  of  the  Supreme  Court  to  annul  State  laws  as 
being  repugnant  to  the  Constitution,  and  the  powers  of  the  Federal 
government,  was  again  vigorously  applied  by  the  Chief-Justice  and  his 
associates,  at  the  memorable  session  of  1819,  in  three  noted  cases,  || 
whose  vital  importance,  and  intimate  connection  with  the  constitu- 
tional jurisprudence  of  the  country,  render  a  brief  notice  of  each  of 
them  proper  and  necessary  in  this  place. 

*  McCulloch  vs.  State  of  Maryland, 
f  Ante,  page  358. 

t  Ante,  p.  359.  §  9  Cranch'e  Reports,  43. 

||  The  Dartmouth  College  case,  the  case  of  Sturges  vs.  Crownneshicld,  and  that 
of  McCulloch  vs.  Maryland. 


394  LIVES  OF  THE  CHIEF-JUSTICES. 

The  first  of  these  cases  to  which  I  shall  allude,  is  the  celebrated 
Dartmouth  College  case,  reported  under  the  title  of  The  Trustees  of 
Dartmouth  College  vs.  Woodward  ;*  and  I  notice  it  first,  because, 
though  not  the  earliest  in  point  of  time,  of  the  three  great  cases  de- 
cided at  the  session  of  1819,  it  is  closely  connected  in  principle  with, 
and  most  naturally  follows,  the  cases  of  Fletcher  vs.  Peck,  and  Terret 
vs.  Taylor,  above  referred  to,  and  indeed  is,  in  another  form,  but  a 
branch  of  the  same  discussion,  namely,  the  constitutional  inhibition 
upon  the  States  to  pass  any  law  impairing  the  obligation  of  contracts. 

This  celebrated  case  is  too  well  known  to  need  a  detailed  statement 
of  the  facts  out  of  which  it  arose.  Acts  of  the  legislature  of  New 
Hampshire,  passed  in  1816,  had  invaded  the  charter  of  the  College, 
granted  by  the  British  Crown  before  the  revolution.  A  suit  was  in- 
stituted in  the  State  Courts  of  New  Hampshire  to  test  the  validity  of 
these  acts,  and  the  decision  of  the  highest  Court  of  the  State  was 
in  favor  of  their  validity  and  against  the  College.  From  this  decision 
the  Trustees  of  the  College  appealed  to  the  Supreme  Court  of  the 
United  States.  The  argument  of  the  case  was  fully  commensurate 
with  its  great  importance,  and  the  unusual  interest  it  had  excited. 
Webster  and  Hopkinson  appeared  for  the  College,  and  the  newly- 
appointed  Attorney-General  William  Wirt,  and  Mr.  Holmes,  on  the 
other  side.  Of  the  depth  and  power,  and  brilliancy  of  the  arguments, 
particularly  those  of  Webster  and  Wirt,  it  is  unnecessary  to  speak. 
That  of  the  former,  even  as  it  is  found  in  the  dry  and  hard  outlines  of 
the  reporter's  notes,  exhibits  in  its  full  maturity  the  greatness  and 
majestic  strength  of  one  of  those  rare  intellects  that  appear  at  long 
intervals  in  the  world.f  The  speech  of  Wirt,  though  not  fully  report- 

*  4  Wheaton's  Reports,  518. 

t  Mr.  Choate,  in  his  late  eloquent  eulogy  upon  Mr.  Webster,  has  supplied  the 
peroration  to  this  argument,  together  with  some  interesting  reminiscences  at- 
tending it,  from  the  relation  of  an  eye-witness,  Professor  Chauncey  A.  Goodrich, 
of  Yale  College.  The  interest  of  the  narrative,  not  less  than  its  beauty  of  expres- 
sion, furnishes  an  apology  for  introducing  it  in  this  place  : 

"  The  Supreme  Court  of  the  United  States  held  its  session  that  winter  in  a 
mean  apartment,  of  moderate  size — the  Capitol  not  having  been  built  after  its  de- 
struction in  1814.  The  audience,  when  the  case  came  on,  was  therefore  small, 
consisting  chiefly  of  legal  men,  the  tlite  of  the  profession  throughout  the  country. 
Mr.  Webster  entered  on  his  argument  in  the  calm  tone  of  easy  and  dignified  con- 
versation. His  matter  was  so  completely  at  his  command  that  he  scarcely  looked 


JOHN  MARSHALL.  395 

ed,  was  also  of  great  power  and  beauty.  Indeed,  it  must  have  been 
one  of  liis  greatest  and  most  brilliant  efforts  to  have  justified  the  en- 
comiums which  his  adversary  passed  upon  it.  Says  Webster  in  a 

at  his  brief,  but  went  on  for  more  than  four  hours  with  a  statement  so  luminous 
and  a  chain  of  reasoning  so  easy  to  be  understood,  and  yet  approaching  so  nearly 
to  absolute  demonstration,  that  he  seemed  to  carry  with  him  every  man  of  his 
audience  without  the  slightest  effort  or  weariness  on  either  side.  It  was  hardly 
eloquence,  in  the  strict  sense  of  the  term — it  was  pure  reason.  Now  and  then,  for 
a  sentence  or  two,  his  eye  flashed  and  his  voice  swelled  into  a  bolder  note  as  he 
uttered  some  emphatic  thought,  but  he  instantly  fell  back  into  the  tone  of  earnest 
conversation  which  ran  throughout  the  great  body  of  his  speech.  A  single  cir- 
cumstance will  show  you  the  clearness  and  absorbing  power  of  his  argument. 

"  I  observed  that  Judge  Story,  at  the  opening  of  the  case,  had  prepared  himself, 
pen  in  hand,  as  if  to  take  copious  minutes.  Hour  after  hour,  I  saw  him  fixed  in 
the  same  attitude,  but  so  far  as  I  could  perceive,  with  not  a  note  on  his  paper. 
The  argument  closed,  and  I  could  not  discover  that  he  had  taken  a  single  note. 
Others  around  me  remarked  the  same  thing,  and  it  was  among  the  on  dits  of 
Washington,  that  a  friend  spoke  to  him  of  the  fact  with  surprise,  when  the  Judge 
remarked : — 

"  '  Everything  was  so  clear,  and  so  easy  to  remember,  that  not  a  note  seemed 
necessary,  and  in  fact,  1  thought  little  or  nothing  about  my  notes.' 

"  The  argument  ended,  Mr.  Webster  stood  for  some  moments  silent  before  the 
court,  while  every  eye  was  fixed  intently  upon  him.  At  length,  addressing  the 
Chief-Justice,  Marshall,  he  proceeded  thus : — 

"  '  This,  sir,  is  my  case !  It  is  the  case  not  merely  of  that  humble  institution- 
it  is  the  case  of  every  college  in  our  land.  It  is  more.  It  is  the  case  of  every 
eleemosynary  institution  throughout  our  country— of  all  those  great  charities 
founded  by  the  piety  of  our  ancestry  to  alleviate  human  misery,  and  scatter  bless- 
ings along  the  pathway  of  life.  It  is  more !  It  is  in  some  sense  the  case  of  every 
man  among  us,  who  has  property  of  which  he  may  be  stripped,  for  the  question  is 
simply  this  :  '  Shall  our  State  Legislatures  be  allowed  to  take  that  which  is  not 
their  own,  to  turn  it  from  its  original  use  and  apply  it  to  such  ends  or  purposes 
as  they,  in  their  discretions,  shall  see  fit  ?'  Sir,  you  may  destroy  this  little  insti- 
tution :  it  is  weak  :  it  is  in  your  hands!  I  know  it  is  one  of  the  lesser  lights  in 
the  literary  horizon  of  our  country.  You  may  put  it  out.  But  if  you  do  so,  you 
must  carry  through  your  work.  You  must  extinguish,  one  after  another,  all 
those  great  lights  of  science  which  for  more  than  a  century  have  thrown  their 
radiance  over  our  land  1  It  is,  sir,  as  I  have  said,  a  small  college.  And  yet  there 
are  those  who  love  it.  [Here  the  feelings  which  he  had  thus  far  succeeded  in 
keeping  down,  broke  forth :  his  lips  quivered  ;  his  firm  cheeks  trembled  with 
emotion ;  his  eyes  were  filled  with  tears ;  his  voice  choked,  and  he  seemed  strug- 
gling  to  the  utmost  simply  to  gain  that  mastery  over  himself  which  might  save 


396  LIVES  OP  THE  CHIEF-JUSTICES. 

letter  to  him  from  Boston,  soon  after  :  "  It  is  the  universal  opinion  in 
this  quarter,  among  all  who  have  inquired  or  heard  about  the  cause, 
that  that  argument  was  a  full,  able,  and  most  eloquent  exposition  of 
the  rights  of  the  defendant.  I  will  add  that,  in  my  opinion,  no  future 
discussion  of  the  questions  involved  in  the  cause,  either  at  the  bar  or 
on  the  bench,  will  bring  forth  on  the  part  of  the  defendant  any  im- 
portant idea  which  was  not  argued,  expanded,  and  pressed  in  the 
argument  alluded  to." 

There  are  those  who  are  still  of  the  opinion  that  Wirt,  if  indeed  he 
him  from  an  unmanly  .burst  of  feeling.  I  will  not  attempt  to  give  you  the  few 
broken  words  of  tenderness  in  which  he  went  on  to  speak  of  his  attachment  to  the 
college ;  the  whole  seemed  to  be  mingled  throughout  with  the  recollections  of 
father,  mother,  brother,  and  all  the  trials  and  privations  through  which  he  had 
made  his  way  into  life.  Every  one  saw  that  it  was  wholly  unpremeditated,  a 
pressure  ou  his  heart,  which  sought  relief  in  words  and  tears.] 

"  The  court-room  during  these  two  or  three  minutes,  presented  an  extraordinary 
spectacle.  Chief-Justice  Marshall,  with  his  tall  and  gaunt  figure  bent  over  as  if 
to  catch  the  slightest  whisper,  the  deep  furrows  of  his  cheek  expanded  with  emo- 
tion, and  eyes  suffused  with  tears ;  Mr.  Justice  Washington  at  his  side,  with  his 
small  and  emaciated  frame,  and  a  countenance  more  like  marble  than  I  ever  saw 
on  any  other  human  being,  leaning  forward  with  an  eager,  troubled  look ;  and 
the  remainder  of  the  court,  at  the  two  extremities,  pressing,  as  it  were,  towards  a 
single  point,  while  the  audience  below  were  wrapping  themselves  round  in  closer 
folds  beneath  the  bench  to  catch  each  look,  and  every  movement  of  the  speaker's 
face.  If  a  painter  could  give  us  the  scene  on  canvass — those  forms  and  coun- 
tenances, and  Daniel  Webster  as  he  then  stood  in  the  midst — it  would  be 
one  of  the  most  touching  pictures  in  the  history  of  eloquence.  One  thing  it 
taught  me,  that  the  pathetic  depends  not  mejrely  on  the  words  uttered,  but  still 
more  on  the  estimate  we  put  upon  him  who  utters  them.  There  was  not  one 
among  the  strong-minded  men  of  that  "assembly  who  would  think  it  unmanly  to 
weep  when  he  saw  standing  before  him  the  man  who  had  made  such  an  argu- 
ment, melted  into  the  tenderness  of  a  child.  Mr.  Webster  had  now  recovered  hia 
composure,  and,  fixing  his  keen  eye  on  the  Chief-Justice,  said,  in  that  deep  tone 
with  which  he  sometimes  thrilled  the  heart  of  an  audience, 

" '  Sir,  I  know  not  how  others  may  feel,'  (glancing  at  the  opponents  of  the  Col- 
lege before  him,)  '  but  for  myself,  when  I  see  my  alma  mater  surrounded  like 
Caesar  in  the  Senate  House,  by  those  who  are  reiterating  stab  upon  stab,  I  would 
not  for  this  right  hand  have  her  turn  to  me  and  say, '  et  tu  quoque  mi  fill  /"  ' 

"And  thou,  too,  my  son!  He  sat  down.  There  was  a  death-like  stillness 
throughout  the  room  for  some  moments ;  every  one  seemed  to  be  slowly  recover- 
ing himself,  and  coming  gradually  back  to  his  ordinary  range  of  thought  and 
feeling." 


JOHN  MARSHALL.  397 

had  not  the  better  of  the  argument,  was  at  least  on  the  true  side  of 
the  question,  and  that  it  was  going  far — iudeed  to  the  extreme  limit 
of  construction — for  the  Supreme  Court  to  say,  that,  by  the  Constitu- 
tion of  the  United  States,  the  legislature  of  a  sovereign  State  could 
not  alter  the  charter  of  a  literary  corporation  resting  upon  a  grant 
from  the  British  Crown.  Such,  however,  was  the  decision  of  the 
Supreme  Court  as  pronounced  by  the  Chief- Justice,  and  amplified  by 
the  written  opinions  of  Justices  Story  and  "Washington,  Mr.  Justice 
Duval  alone  dissenting.  The  Chief-Justice  lays  down,  broadly  and 
clearly,  the  propositions,  that  the  charter  of  the  College  was  a  contract 
within  the  meaning  of  the  Constitution,  to  which  the  donors,  the 
trustees  of  the  corporation,  and  the  Crown  were  the  original  parties, 
and  that  it  was  made  on  a  valuable  consideration,  for  the  security  and 
disposition  of  property  ;  that  the  College  was  a  private  eleemosynary 
institution,  and  that  the  funds  with  which  it  was  endowed  were  be- 
stowed by  individuals  on  the  strength  of  its  charter ;  that  contracts 
of  this  kind,  creating  these  charitable  institutions,  are  within  the  pur- 
view and  protection  of  the  Constitution  ;  that  this  contract  remained 
unchanged  by  the  revolution,  and  the  duties  as  well  as  the  powers 
of  the  government  devolved  on  the  people  of  New  Hampshire  ;  but 
that  the  act  of  the  State,  complained  of,  transferred  the  power  of 
governing  the  College  from  the  mode  expressed  in  its  charter,  to  the 
governor  of  New  Hampshire,  thus  substituting  the  will  of  the  State 
for  the  will  of  the  donors.  This,  he  held,  was  a  subversion  of  that 
contract,  on  the  faith  of  which  the  donors  had  invested  their  property, 
and  the  act,  therefore,  as  repugnant  to  the  Constitution  of  the  United 
States,  was  null  and  void. 

It  is  impossible  to  read  this  admirably  reasoned  and  luminous  opin- 
ion of  the  Chief-Justice  without  being  impressed  with  the  irresistible 
power  of  that  direct  and  simple,  but  acute  and  subtle  juridical  logic  of 
which  he  was  so  consummately  the  master.*  It  is  comparatively 

*  Judge  Story  notices  a  favorite  mode  of  reasoning  of  the  Chief-Justice,  indi- 
cated by  his  frequent  use  of  the  term — "  it  is  admitted."  Said  Daniel  Webster, 
"  when  Chief-Justice  Marshall  says,  '  it  is  admitted,  sir,'  I  am  prepared  for  a  bomb 
that  will  demolish  all  my  points."  Judge  Story  also  remarks  that  it  was  a  com- 
mon expression  of  those  who  were  accustomed  to  argue  before  him,  "  Once 
grant  his  premises,  and  you  are  forced  to  admit  his  conclusions.  Therefore  deny 
everything  he  says." 


398  LIVES   OF  THE  CHIEF-JUSTICES. 

brief  for  a  case  of  such  magnitude  ;  but  at  the  same  time  it  is  full  and 
comprehensive.  He  relies  upon  no  authority,  and  indeed  cites  no 
cases.  All  is  an  effort  of  pure  ratiocination — of  logical  deduction. 
In  this  respect  it  contrasts  strongly  with  the  more  elaborate  and 
striking  opinion  of  Judge  Story  in  the  same  case — full  of  illustration, 
abounding  in  analogies,  overflowing  with  citations  of  authorities  and 
adjudged  cases.  Indeed,  so  full,  and  ample,  and  rich  is  Story's  argu- 
ment in  the  abundance  of  its  legal  lore,  as  to  throw  somewhat  into  the 
shade  the  simple  and  unadorned,  but  firm  and  compact,  logic  of  the 
Chief-Justice.  The  two  opinions,  as  has  been  well  remarked,  certainly 
evince  the  different  structure  of  the  two  minds  of  these  eminent 
jurists.* 

The  next  decision  at  this  term  which  I  shall  notice  was  made  in 
the  case  of  Sturges  vs.  Crowninshield,f  which  established  a  most  im- 
portant principle  relative  to  the  limitation  of  State  sovereignty  under 
the  same  clause  of  the  Constitution  involved  in  the  discussion  of  the 
Dartmouth  College  case,  namely,  the  clause  which  prohibits  a  State 
Legislature  from  passing  any  law  "  impairing  the  obligation  of  con- 
tracts." 

The  defendant  had  been  sued  in  the  Circuit  Court,  on  two  promis- 
sory notes  dated  in  March  1811,  and  he  pleaded  his  discharge  under 
the  Insolvent  Act  of  New  York,  passed  in  April  1811.  The  plaintiff 
claimed  that  the  act  of  New  York,  being  retrospective,  and  assuming, 
as  in  this  case,  to  discharge  pre-existing  debts,  was  unconstitutional 
and  void.  This  position  was  sustained,  all  the  judges  appearing  to 
have  unanimously  concurred  in  the  admirably  reasoned  and  conclusive 
opinion  pronounced  by  the  Chief-Justice — an  opinion  which  deserves 
to  be  carefully  read  by  the  student  of  our  Constitutional  history — 
establishing  the  proposition,  that  a  State  law  assuming  to  discharge 
the  debtor  from  his  contract  to  pay  an  existing  debt,  by  a  given  time, 
without  performance,  and  to  release  him,  without  payment,  entirely 
from  any  future  obligation  to  pay,  impaired,  because  it  entirely  dis- 

*  The  comparison  is  made  by  the  son  and  biographer  of  Judge  Story.  Its  char- 
acteristic truth,  I  apprehend,  will  be  at  once  recognized.  "  The  argument  of  the 
Chief-Justice,"  he  says,  "  is  close,  logical,  and  compact,  but  somewhat  hard  and 
dry.  The  argument  of  my  father  is  equally  convincing,  but  far  more  flowing  and 
learned." 

t  4  Wheaton's  Reports,  122. 


JOHN    MARSHALL.  399 

charged,  the  obligation  of  that  contract,  and  was  therefore  repug- 
nant to  the  Constitution  of  the  United  States,  and  void.  In  another 
case,*  decided  at  the  same  time,  the  Chief-Justice  declared  as  a  part 
of  the  opinion  of  the  Court,  that  the  circumstance  of  the  State  law 
under  which  the  debt  was  attempted  to  be  discharged,  having  been 
passed  before  the  debt  was  contracted,  made  no  difference  in  the  ap- 
plication of  the  principle.  This  proposition,  however,  was  subse- 
quently reviewed,  in  the  case  which  I  shall  now  notice,  and  after  a 
full  discussion  and  careful  examination,  overruled  by  a  majority  of  the 
court,  the  Chief-Justice  still  adhering  to  his  opinion. 

The  decision  in  Sturges  vs.  Crowninshield,  as  an  eminent  lawyer  has 
remarked  in  a  recent  case  involving  a  branch  of  the  same  discussion,f 
took  the  States  and  the  profession  by  surprise.  It  was  a  matter  of 
astonishment  that  up  to  that  time  the  States  had  all  been  wrong. 
But  this  surprise  was  lessened  when  the  case  came  to  be  discussed 
afterwards  by  the  bench  as  well  as  the  bar  in  Ogden  vs.  Saunders. 
This  important  case,  which  is  considered  as  having  settled  the  ques- 
tion relative  to  the  constitutionality  and  extent  of  State  insolvent 
laws,  was  brought  to  argument  at  the  term  of  the  Court  held  in 
February,  1824.  Mr.  Clay  and  Mr.  Webster  were  the  leading 
counsel  on  either  side,  the  former  supported  by  Mr.  D.  B.  Ogden  and 
Mr.  Haines — and  the  latter,  who  maintained  the  unconstitutionally 
of  the  State  law,  by  Mr.  Wheaton.  The  case  was  afterwards  re- 
argued  in  connexion  with  other  causes  depending  on  the  same  ques- 
tion, and  the  decision  of  the  court  pronounced  in  the  winter  of  1827.J 
In  this  latter  argument  the  same  gentlemen  who  advocated  the  un- 
constitutionality  of  the  State  laws  again  appeared,  and  the  parties 
claiming  the  benefit  of  these  laws  were  sustained  by  the  eminent 

*  McMillan  vs.  McNeil,  4  Wheaton's  Reports,  209. 

f  Mr.  Reverdy  Johnson,  in  the  argument  of  Cook  vs.  Moffat,  5  Howard,  295. 
In  that  case  the  court  reaffirmed  the  prevailing  doctrine  in  Ogden  vs.  Saunders, 
holding  that  a  New  York  contract  could  not  be  aflccted  by  the  discharge  of  the 
debtor  under  the  insolvent  laws  of  Maryland.  MR.  CHiEFJusncE  TAKET  inti- 
mates that  he  does  not  regard  this  part  of  the  decision  as  in  harmony  with  some 
of  the  principles  previously  adopted  by  the  court,  and  if  the  question  bad  not 
been  considered  as  res  adjudicata,  he  would  have  been  in  favor  of  establishing  a 
different  rule.  See  subsequent  sketch  of  Chief-Justice  Taney. 

|  12  Wheutoa's  Reports,  213. 


400  LIVES  OF  THE  CHIEF-JUSTICES. 

talents  and  great  ability  of  the  Attorney-General  Wirt,  and  Edward 
Livingston,  General  Jones,  Mr.  Sampson,  and  Mr.  D.  B.  Ogden. 

The  case  differed  from  that  of  Sturges  vs.  Crowninshield  in  two 
important  particulars,  namely,  1st,  that  in  the  former  case  the  law 
acted  on  a  contract  which  was  made  before  its  passage,  and  in  the 
latter  case  the  contract  was  entered  into  after  the  passage  of  the 
law  ;  and,  2d,  that  the  debt  claimed  to  be  discharged  under  the  State 
law  was  due  to  a  citizen  of  another  State.  The  first  question  involved 
the  consideration  of  the  constitutionality  of  a  State  bankrupt  law 
applied  to  contracts  made  after  its  passage  ;  the  second  the  very  grave 
question  whether  the  discharge,  under  such  law,  of  a  contract  made 
with  a  citizen  of  another  State,  and  where  the  certificate  was  actually 
pleaded  in  the  courts  of  another  State,  was  a  valid  discharge  of  the 
debt. 

It  may  be  here  remarked,  that  this  is  the  only  great  constitutional 
question  in  which  the  majority  of  the  court  are  known  to  have  differed 
from  the  Chief- Justice.  Upon  the  question  of  the  constitutionality  of 
the  insolvent  act  of  New  York  four  of  the  judges — Mr.  Justice 
Washington,  Mr.  Justice  Johnson,  Mr.  Justice  Trimble,  and  Mr. 
Justice  Thompson — delivered  separate  opinions  in  favor  of  the  validity 
of  the  law,  and  the  Chief-Justice — with  whom  Justices  Story  and 
Duval  concurred — delivered  a  dissenting  opinion.  Upon  the  second 
question,  Mr.  Justice  Johnson  united  with  the  minority,  holding  that 
though  a  State  might  constitutionally  pass  a  bankrupt  insolvent  act  to 
operate  upon  future  contracts  and  the  rights  of  its  own  citizens,  yet, 
that  a  discharge  under  such  act  was  not  a  discharge  of  a  debt  due  a 
citizen  of  another  State.  To  the  latter  part  of  this  proposition 
Justices  Washington,  Trimble,  and  Thompson  dissented.* 

*  The  published  opinion  of  Judge  Johnson  has  been  since  regarded  as  settling  the 
law  in  respect  to  this  question.  In  the  case  of  Boyle  vs.  Zacharie  and  Turner,  at  the 
January  term,  1832,  Mr.  Wirt  inquired  if  the  opinion  of  Mr.  Justice  Johnson  had 
been  adopted  by  the  other  judges,  when  Chief-Justice  Marshall  said,  "  The  judges 
of  this  court,  who  were  in  a  minority  of  the  court  upon  the  general  question  as  to 
the  constitutionality  of  State  insolvent  laws,  concur  in  the  opinion  of  Mr.  Justice 
Johnson  in  the  case  of  Ogden  vs.  Sauiiders.  That  opinion  is,  therefore,  to  be 
deemed  the  opinion  of  the  other  judges  who  assented  to  that  judgment.  What- 
ever principles  are  established  in  that  opinion,  are  to  be  considered  no  longer 
open  for  controversy,  but  the  settled  law  of  the  court." — 6  Peters'  Reports,  348. 


JOHN  MARSHALL  401 

The  dissenting  opinion  of  the  Chief-Justice  on  this  question  of  the 
constitutionality  of  State  insolvent  laws,  is  distinguished  by  his  usual 
clearness,  directness,  and  logical  vigor.  Like  his  previous  opinions  in 
the  Dartmouth  College  case,  and  in  Sturges  vs.  Crowuinshield,  and, 
indeed,  it  may  be  said  like  all  his  opinions  on  constitutional  law,  it  is 
purely,  an  efi?ort  of  ratiocination — a  piece  of  simple,  logical  reasoning 
and  deduction; — unsustained  by  precedent  and  authority,  unaided  by 
analogies,  almost  severe  and  hard  in  its  rigid  rejection  of  illustration 
and  ornament.  The  reasons  of  Marshall  were  the  suggestive  infer- 
ences of  his  own  mind ;  his  manner  of  expression  was  the  natural 
result  of  the  mode  he  adopted  in  the  investigation  of  the  subject  before 
him.  He  was  in  the  constant  habit  of  interpreting  the  Constitution 
by  itself,  of  reading  it  by  the  steady  torch  of  his  own  reason,  of  bring- 
ing to  bear  upon  it  the  illumination  of  his  own  clear  and  strong  intel- 
lect, of  studying  it,  not  in  isolated  portions  and  dctaqhed  sentences, 
but  as  a  whole.  The  principles  of  construction  which  he  applied  to  it, 
are  admirably  summed  up  by  him  in  the  very  case  under  consideration 
in  the  following  words  : — "  To  say  that  the  intention  of  the  instru- 
ment must  prevail ;  that  this  intention  must  be  collected  from  its 
words  :  that  its  words  are  to  be  understood  in  that  sense  in  which  they 
are  generally  used  by  those  for  whom  the  instrument  was  intended  ; 
that  its  provisions  are  neither  to  be  restricted  into  insignificance,  nor 
extended  to  objects  not  comprehended  in  them,  nor  contemplated  by 
its  framers ;  is  to  repeat  what  has  been  already  said  more  at  large, 
and  is  all  that  can  be  necessary." 

Applying  these  rules  of  construction,  the  Chief-Justice  arrives  at 
the  conclusion  that  the  constitutional  inhibition  upon  the  States  from 
passing  laws  "  impairing  the  obligation  of  contracts,"  extends  to  all 
contracts  prospective  as  well  as  retrospective.  Had  retrospective 
legislation  only  been  intended,  the  very  word  would  have  been  used  to 
convey  the  idea.  Words  which  directly  and  plainly  express  the  car- 
dinal intent  always  present  themselves  to  those  who  are  preparing  an 
important  instrument,  and  will  always  be  used  by  them.  The  general 

The  same  doctrine,  as  I  have  observed  in  a  previous  note,  was  recognized  in  the 
late  case  of  Cookt*.  Moffat,  as  a  principle  too  well  settled  to  be  shaken,  the  present 
Chief-Jnstice,  however,  intimating  his  concurrence,  if  the  question  had  been  still 
open,  in  the  views  expressed  by  Justices  Washington,  Thompson,  and  Trimble. 
26 


402  LIVES  OF  THE  CHIEF-JUSTICES. 

language  used  is  such  as  to  suggest  a  general  intent  to  prohibit  State 
legislation  on  the  entire  subject — the  obligation  of  contracts — not 
merely  from  passing  retrospective  laws.  It  must  be  admitted  that  it 
is  much  easier  to  deny  these  conclusions,  than  to  answer  or  refute  the 
course  of  reasoning  by  which  they  are  sustained.  All  we  can  say, 
therefore,  in  regard  to  them  is  that  they  are  not  the  law  of  the  United 
States,  because  the  majority  of  the  Court  did  not  acquiesce  in  their 
correctness. 

The  last  of  the  three  great  cases  discussed  and  decided  at  the  ses- 
sion of  the  Court  in  1819,  was  the  well  known  case  of  McCulloch  vs. 
the  State  of  Maryland,*  a  case  which  may  be  regarded  in  many 
respects  as  the  most  important  ever  discussed  in  the  tribunals  of  the 
country,  involving,  as  it  did,  a  vital  question,  and  one  of  the  most 
delicate  questions  too  that  can  possibly  arise,  relative  to  the  conflict- 
ing powers  of  the  general  and  State  governments,  and  the  supremacy 
of  their  respective  laws.  It  was  in  reality  a  controversy  between  the 
United  States  and  the  State  of  Maryland  ;  and  I  might  here  pause 
a  moment,  to  pay  a  tribute  of  admiration  to  the  foresight  and 
wisdom  of  those  statesmen  who  framed  that  august  tribunal — that 
"  more  than  Amphictyonic  Council,"  as  it  was  justly  styled  in  the  warm 
and  glowing  language  of  one  of  the  most  eloquent  advocates  of  the 
day — the  Supreme  Court  of  the  United  States  ; — a  tribunal  vested 
with  authority  to  sit  in  judgment  not  only  upon  the  rival  pretensions 
and  claims  of  sovereign  States  as  among  themselves,  but  also  to  de- 
termine questions  of  power  and  right  as  between  the  States  and  the 
supreme  Federal  Government ; — to  determine  them  finally,  and 
authoritatively,  without  question  and  without  appeal — without  force 
and  even  without  angry  controversy.  A  tribunal  so  constituted,  with 
such  ample  jurisdiction,  and  yet  wisely  limited  powers,  does  not  find 
its  parallel  in  history  ;  and  it  may  be  added  that  a  tribunal  so  august, 
not  less  on  account  of  its  own  dignity,  than  of  those  vast  and  un- 
measured interests  which  are  committed  to  its  keeping,  is  nowhere 
else  to  be  found  among  civilized  nations. 

In  the  present  case  the  controversy  between  the  United  States  and 
Maryland  was  of  a  very  novel  as  well  as  of  a  very  interesting  cha- 
racter. Each  disputed  the  constitutionality  of  a  law  of  the  other. 
*  4  Wheaton's  Reports,  316. 


JOHN  MARSHALL.  403 

Each  asserted  that  the  other  had  transcended  the  limits  of  its  sover- 
eignty. Maryland  had  assumed  to  pass  an  act  laying  a  tax  on  the 
branch  of  the  United  States  Bank  in  that  State,  which  law,  it  was 
alleged,  was  repugnant  to  the  constitutional  powers  of  the  Federal 
Government,  and  void.  The  State  in  turn  attacked  the  constitution- 
ality .of  the  law  of  the  Federal  Government  chartering  the  Bank.  The 
controversy  was  deemed  of  such  importance  that  the  government 
directed  the  Attorney-General,  Mr.  Wirt,  to  appear,  and  the  Court  dis- 
pensed with  its  standing  rule,  which  permitted  only  two  counsel  to  argue 
on  each  side.  What  shall  be  said  of  the  power  and  brilliancy  of  that 
discussion  at  the  bar  which  called  out  the  strength  of  Webster,  the 
culture  and  erudition  of  Wirt,  and  the  genius  of  Pinkney  on  the  one 
side,  and  the  solid  learning  and  eloquence  of  Martin,  Hopkinson,  and 
Jones  on  the  other  * — a  discussion  that  extorted  from  the  presiding 
judge  on  the  bench  the  almost  involuntary  exclamation  that  it  dis- 
played "  a  splendor  of  eloquence  and  strength  of  argument  seldom  if 
ever  surpassed  ?"  Webster  opened  the  debate.  Wirt  followed  Hop- 
kinson. Jones  and  Martin  continued  the  argument,  and  Pinkney 
reserved  himself  for  the  reply.  The  speech  of  Pinkney  occupied  three 
days  in  the  delivery,  and  is  pronounced  one  of  the  ablest  he  ever  de- 
livered.f  The  hall  was  filled  to  suffocation  by  a  crowded,  but  brilliant 
audience  of  ladies  and  gentlemen,  and  he  accordingly  addressed  himself 
with  more  than  his  usual  energy  and  fire  to  the  discussion  of  what  he 
somewhat  affectedly  called  the  "  miserable  shreds,  the  ragged  odds 
and  ends,  the  tristes  reliquice"  of  what  had  been  left  him  of  the  argu- 
ment. He  had  hoped  to  escape,  he  says,  the  discussion  of  the  ques- 
tion of  the  constitutionality  of  the  Bank,  and  had  made  it  his  humble 
suit  to  the  learned  gentlemen  on  the  other  side  not  to  conjure  up  by 

*  Of  this  array  of  counsel,  perhaps  the  strongest  and  most  imposing  ever 
witnessed  at  the  bar  of  thia  or  any  other  country,  the  venerable  General  Walter 
Jones,  now  residing  in  Washington,  is  the  sole  survivor. 

t  The  substance  of  the  argument,  from  the  memoranda  taken  at  the  time  by 
Mr.  Wheaton,  and  the  imperfect  notes  subsequently  furnished  by  Pinkney,  is  all 
that  remains  of  this  great  speech.  Judge  Story,  in  one  of  his  letters,  remarks  of 
it :  "I  never  in  my  whole  life  heard  a  greater  speech.  It  was  worth  a  journey 
from  Salem  to  hear  it.  His  elocution  was  excessively  vehement,  but  his  eloquence 
was  overwhelming.  His  language,  his  style,  his  figures,  his  argument,  were  most 
brilliant  and  sparkling." 


404:  LIVES  OF  THE  CHIEF-JUSTICES. 

unhallowed  rights  the  ghost  of  a  departed  controversy.  If  the  con- 
stitutionality of  the  Bank  could  not  be  assumed,  he  had  hoped,  at 
least,  it  would  have  been  submitted  in  respectful  silence.  But  the 
counsel  had  thrown  down  the  gauntlet  and  entered  upon  the  discus- 
sion. "The  consequence  is,"  he  remarks,  "  that  the  question  of  the 
constitutionality  of  the  Bank  has  arisen,  as  it  were,  from  the  grave, 
and  in  its  very  shroud  presents  itself  before  you,  to  demand  at  last  the 
honors  of  Christian  burial,  in  such  sort,  that  it  may  hereafter  hope  to 
rest  in  peace  beyond  the  reach  of  the  lawless  incantations  of  those 
potent  sorcerers  and  their  confederates." 

This  question  then  met  Chief-Justice  Marshall  at  the  threshold,  in' 
pronouncing  the  opinion  of  the  Court.  He  decided  it,  as  is  well 
known,  in  favor  of  the  constitutionality  of  the  Bank.  I  do  not  pro- 
pose to  comment  upon  or  review  his  argument.  The  question  has 
been  considered  as  a  question  of  state  since  that  time,  and  different 
opinions  are  entertained  in  regard  to  the  correctness  of  this  decision. 
It  is  perhaps  of  little  practical  importance  now,  as  the  bank,  in  the 
language  of  one  of  the  counsel  for  the  government,  uttered  many 
years  afterwards,  has  become  an  "obsolete  idea."  It  is  sufficient 
here  to  say,  that  the  Chief-Justice  found  no  express  grant  for  it  in 
the  Constitution,  but  he  deduced  it  from  the  power  to  "  make  all  laws 
which  shall  be  necessary  and  proper  to  carry  into  execution "  the 
powers  of  government.  The  substance  of  his  views  in  respect  to  this 
grant  of  power  is  expressed  in  the  following  passage  : — "  We  admit, 
as  all  must  admit,  that  the  powers  of  the  government  are  limited,  and 
that  its  limits  are  not  to  be  transcended.  But  we  think  the  sound 
construction  of  the  Constitution  must  allow  to  the  national  legislature 
that  discretion  with  respect  to  the  means  by  which  the  powers  it  con- 
fers are  to  be  carried  into  execution,  which  will  enable  that  body  to 
perform  the  high  duties  assigned  to  it  in  the  manner  most  beneficial 
to  the  people.  Let  the  end  be  legitimate,  let  it  be  within  the  scope 
•  of  the  Constitution,  and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited,  but  consist  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional." 

The  institution  of  the  Bank  he  believed  to  be  within  this  definition, 
and  thus  arrived  at  the  conclusion  that  its  establishment  was  not  re- 
pugnant to  the  legitimate  powers  of  the  general  government. 


JOHN  MARSHALL.  405 

The  constitutionality  of  the  Bank  being  thus  established  as  a  "neces- 
sary and  proper  "  instrument  to  carry  ,on  the  fiscal  operations  of  the 
government,  the  Chief-Justice  next  approaches  the  delicate,  and,  if 
possible,  still  more  important  question  as  to  the  right  of  the  State  of 
Maryland,  in  the  exercise  of  its  sovereignty,  to  tax  the  Ban-k.  The 
Constitution  was  found  to  contain  no  express  provision  for  the  case  ;  it 
did  not  in  terms  prohibit  the  exercise  of  such  a  power  by  the  State- 
Maryland  therefore  claimed  that  this  unlimited  right  of  taxation  was 
a  portion  of  her  sovereignty  which  she  had  never  yielded  to  the 
general  government  -,  and  that,  though  the  State  might  not  be  at 
liberty  directly  to  resist  a  constitutional  law  of  Congress,  yet  it  might 
exercise  its  acknowledged  powers  upon  it,  and  that  the  Constitution 
had  left  the  States  this  right  (embracing  the  unlimited  right  of  taxa- 
tion,) IN  CONFIDENCE  that  it  would  not  be  abused. 

The  United  States,  on  the  other  hand,  contended  that  though  the 
States  undoubtedly  possessed,  as  an  attribute  of  sovereignty,  the 
power  of  taxation,  to  be  exercised  concurrently  with  the  general 
government,  yet,  such  was  the  paramount  character  of  the  Federal 
Constitution,  that  it  would  restrain  a  State  from  any  such  exercise  of 
this  power  as  was  in  its  nature  incompatible  with,  and  repugnant  to, 
the  constitutional  laws  of  the  Union.  The  Bank  was  a  "  necessary 
and  proper"  instrument  to  carry  out  the  acknowledged  powers  of 
government ;  the  power  of  taxing  it  by  the  States  might  be  exercised 
so  as  to  destroy  it  ;  therefore  the  right  of  the  States  to  pass  such  a 
law  was  denied.  These  were  the  conclusions  adopted  by  Marshall,  in 
that  carefully  considered  and  closely  reasoned  opinion,  which  he  pro- 
nounced in  the  case,  and  which,  it  has  been  thought,  contains  tho 
clearest  and  fullest  exposition  of  constitutional  law  on  this  subject, 
and  of  the  nature  and  extent  of  the  powers  of  the  general  and  state 
governments,  ever  delivered,  even  by  himself,  in  any  one  judgment.* 
The  exemption  of  the  Bank  from  State  taxation  he  rests,  to  use  his 
own  language,  "  on  a  principle  which  so  entirely  pervades  the  Consti- 
tution, is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 

*  Says  Chancellor  Kent,  "  A  case  could  not  be  selected  from  the  decisions  of 
the  Supreme  Court,  superior  to  this  one  of  McCulloch  vs.  the  State  of  Mary- 
land, for  the  clear  and  satisfactory  manner  in  which  the  supremacy  of  the  laws  of 
the  Union  have  been  maintained  by  the  Court,  and  an  undue  assertion  of  Stato 
power  overruled  and  defeated." — 1  Kent  Com.  427. 


406  LWES  OF  THE  CHIEF-JUSTICES. 

woveu  with  its  web,  so  blended  with  its  texture,  as  to  be  incapable  of 
being  separated  from  it,  without  rending  it  into  shreds.  This  great 
principle  is,  that  the  Constitution,  and  the  laws  made  in  pursuance 
thereof,  are  supreme  ;  that  they  control  the  constitutions  and  laws  of 
the  respective  States,  and  cannot  be  controlled  by  them.  From  this, 
which  may  almost  be  termed  an  axiom,  other  propositions  may  be 
deduced  as  corollaries,  on  the  truth  or  error  of  which,  and  on  their 
application  to  this  case,  the  cause  has  been  supposed  to  depend. 
These  are  1st,  That  a  power  to  create  implies  a  power  to  preserve. 
2d,  That  a  power  to  destroy,  if  wielded  by  a  different  hand,  is  hostile 
to,  and  incompatible  with  these  powers  to  create  and  to  preserve. 
3d,  That  where  this  repugnance  exists,  that  authority  which  is  supreme 
must  control,  not  yield  to  that  over  which  it  is  supreme."  In  the 
application  of  these  propositions  to  the  case  under  review,  he  considers 
the  law  of  Maryland  as  imposing  a  tax,  not  on  the  real  property  of 
the  Bank,  or  on  the  interest  which  the  citizens  of  Maryland  might 
hold  in  the  institution  in  common  with  other  property  of  the  same 
description  throughout  the  State,  but  as  a  tax  on  the  operations  of 
the  Bank,  as  an  instrument  employed  by  the  government  of  the  Union 
to  carry  its  powers  into  execution,  and  therefore  such  tax  was  uncon- 
stitutional and  void  ;  it  being  a  question  not  of  discretion  and  confidence 
on  the  part  of  the  State,  but  a  question  of  ABSOLUTE  SUPREMACY  as 
between  the  powers  of  Maryland  and  those  of  the  General  Govern- 
ment. Viewed  from  this  position  the  reasoning  and  conclusion  of  the 
Chief-Justice  are  too  strong  to  be  shaken  : — "  If  the  States  may  tax 
one  instrument,  employed  by  the  government  in  the  execution  of  its 
powers,"  he  says,  "  they  may  tax  any  and  every  other  instrument. 
They  may  tax  the  mail ;  they  may  tax  the  mint ;  they  may  tax  patent 
rights  ;  they  may  tax  the  papers  of  the  Custom  House  ;  they  may 
tax  judicial  process  ;  they  may  tax  all  the  means  employed  by  the 
General  Government,  to  an  excess  which  would  defeat  all  the  ends  of 
the  General  Government.  This  was  not  intended  by  the  American 
people.  They  did  not  design  to  make  their  government  dependent  on 
the  States."* 

•  These  propositions  are  of  course  too  obvious  to  be  questioned.  The  danger, 
however,  consists  in  extending  them  beyond  their  proper  limits.  They  evidently 
are  designed  to  refer  to  a  direct  tax  upon  the  means  or  instrument,  not  as  property 


JOHN  MARSHALL.  407 

After  the  searching  and  elaborate  argument  in  this  interesting 
case,  and  the  deliberate  and  unanimous  opinion  of  the  court  thereon, 
it  might  well  be  supposed  that  the  question  would  have  been  consi- 
dered, judicially  at  least,  as  settled.  Such  was  not  the  fact.  It  was 
again  raised  in  Osborne  vs.  The  Bank  of  the  United  States  *  at  the 
session  of  1824,  in  an  appeal  from  the  Circuit  Court  of  Ohio,  which 
court -had  rendered  a  decree  based  upon  the  assumption  that  a  statute 
of  the  State  taxing  the  Bank  of  the  United  States,  similar  to  that  of 
Maryland,  was  unconstitutional,  f  A  revision  of  the  opinion  pro- 

in  the  hands  of  a  citizen  of  the  State,  but  as  actually  employed  in  the  operations 
of  the  General  Government.  In  the  case  of  Wcslon  vs.  the  City  of  Charleston, 
at  the  session  of  1829,  2  Peters,  449 — a  case,  the  argument  of  which  was  illus- 
trated by  the  ornate  eloquence  of  Hayne,  and  the  profound  and  varied  learning  of 
Legare — the  principle  laid  down  in  McCulloch  vs.  Maryland  was  carried  to  a 
still  greater  extent.  The  question  was,  whether  a  State  tax  on  government  stock 
issued  for  loans  to  the  United  States  was  constitutional ;  but  the  distinction  above 
alluded  to,  namely,  whether  it  was  a  tax  upon  property  merely,  or  upon  the 
powers  of  government,  was  not  lost  sight  of,  and  indeed  seems  to  have  been  the 
only  question  at  issue  between  the  majority  and  minority  of  the  Court  In  pro- 
nouncing the  prevailing  opinion  of  the  Court,  the  Chief-Justice  says :  "  The  tax 
on  government  stosk  is  thought  by  this  Court  to  b3  a  tax  on  tha  contract,  a 
tax  on  the  power  to  borrow  money  on  the  credit  of  the  United  States,  and  con- 
sequently to  be  repugnant  to  the  Constitution."  The  clear  and  accurate  mind  of 
Mr.  Justice  Thompson,  with  whom  Mr.  Justice  Johnson  concurred,  while  admit- 
ting the  general  doctrine,  drew  from  it  exactly  the  opposite  inference.  In  hia 
dissenting  opinion  he  says :  "  Thus,  it  is  said  the  States  cannot  tax  the  Mint ; 
but  this  does  not  imply  that  they  may  not  tax  the  money  coined  at  the  Mint  when 
held  and  owned  by  individuals.  Again,  it  is  said  the  States  cannot  tax  a  patent 
right ;  but  if  the  patentee,  from  the  sale  or  use  of  his  patent,  has  acquired  pro- 
perty, or  is  receiving  an  income,  it  could  not  be  intended  to  say  that  such  pro- 
perty or  income  cannot  be  taken  into  the  estimate  of  his  taxable  property.  * 
Congress  has  power  to  raise  armies ;  such  armies  are  made  up  of  officers  and 
soldiers,  and  are  instruments  employed  by  the  government  iu  executing  its 
powers,  and  although  the  army  as  such  cannot  be  taxed,  yet  it  will  not  be 
claimed  that  all  such  officers  and  soldiers  are  exempt  from  State  taxation.  Upon 
the  whole,  considering  that  the  tax  in  question  is  a  general  tax  upon  the  interest 
of  money  on  loan,  I  cannot  think  it  any  violation  of  the  Constitution  of  the 
United  States,  to  include  therein  interest  accruing  from  stock  of  the  United 
States." 

*  9  Wheaton's  Reports,  738. 

f  The  Ohio  law  was  passed  a  few  days  before  the  decision  of  McCulloch  tt. 


408  LIVES  OF  THE  CHIEF-JUSTICES. 

nounced  in  McCulloch  vs.  Maryland  was  requested,  and  granted  by 
the  court.  The  Chief-Justice  again  discusses  with  great  care  the 
questions  raised  and  decided  in  the  former  case,  particularly  that 
which  involved  the  power  of  a  State  to  tax  the  Bank.  The  conclu- 
sions at  which  he  arrives,  however,  and  which  are  re-established  by 
this  judgment,  are  precisely  the  same  as  in  the  Maryland  case,  namely, 
that  the  creation  of  the  bank  was  a  constitutional  exercise  of  the 
powers  of  the  General  Government,  and  that  the  act  of  the  Legisla- 
ture of  Ohio  in  taxing  the  Bank  was  contrary  to  the  Federal  Consti- 
tution, and  void. 

This  case,  it  may  be  remarked,  presented  another  important  con- 
stitutional question,  namely,  as  to  the  validity  of  that  part  of  the  act 
of  Congress  which  authorized  the  Bank  to  sue  in  the  Circuit  Courts. 
The  question  having  been  raised  at  the  close  of  the  argument,  the 
Chief-Justice  and  his  associates  considered  it  of  such  vital  consequence 
as  to  request  that  the  case  might  be  reargued  on  this  point.  The  case 
of  the  Planters'  Bank  of  Georgia  *  involved  the  same  question,  and 
the  two  causes  came  on  for  argument  together.  Mr.  Harper  of  Mary- 
land was  the  leading  counsel  against  the  claim  of  the  Bank  ;  and  Mr. 
Clay,  Mr.  Webster,  and  Mr.  John  Sergeant,  in  favor  of  the  jurisdic- 
tion. The  opinions  delivered  by  the  Chief-Justice  in  both  cases  sus- 
tain the  views  of  the  latter  gentlemen,  and  recognize  the  right  of  the 
Bank  to  sue  in  the  Circuit  Courts  of  the  United  States. 

At  the  session  of  the  Court  in  1821,  another  of  these  interesting 
cases  involving  the  gravest  and  most  important  questions  of  constitu- 
tional law,  and  of  the  jurisdiction  of  the  Federal  tribunals,  was 
brought  to  argument.  This  was  the  case  reported  under  the  title  of 
Cohens  vs.  the  State  of  Yirginia.f  A  judgment  had  been  rendered 
against  the  defendants,  citizens  of  Virginia,  in  the  highest  court  of 
that  State  having  cognizance  of  the  subject,  on  an  information  for 
selling  lottery  tickets  in  a  lottery  to  be  drawn  in  the  city  of  Washing- 
ton, and  the  defendants  claimed  the  protection  of  the  act  of  Congress 
incorporating  the  city  of  Washington.  The  cause  was  brought  by  the 

Maryland,  and  notwithstanding  the  decision  in  that  case,  the  Ohio  state  officers 
proceeded  to  levy  a  tax  of  $50,000  imposed  on  the  branch  Bank  of  the  United 
States,  established  in  that  State. 

*  9  Wheaton's  Reports,  904. 

t  6  Wheaton's  Reports,  264. 


JOHN    MARSHALL.  409 

defendants  to  the  Supreme  Court  of  the  United  States  on  a  writ  of 
error.  The  counsel  for  Virginia,  Messrs.  Barbour  and  Smyth, 
moved  to  dismiss  the  writ  on  the  ground  that  the  Court  had  no  juris- 
diction, because,  1st,  a  State  is  a  defendant ;  2d,  that  no  writ  of 
error  would  lie  from  the  Supreme  Court  to  a  State  Court ;  3d,  that 
neither  the  Constitution  nor  any  law  of  the  United  States  has  been 
violated  by  the  judgment.  Messrs.  Pinkney  and  Ogden  sustained  the 
argument  on  the  other  side. 

The  questions  involved  in  the  first  two  points,  as  was  observed  by 
the  Chief- Justice,  were  of  great  magnitude,  and  might  truly  be  said, 
vitally  to  affect  the  Union.  In  the  masterly  opinion  delivered  by 
him,  he  states  these  questions  in  the  following  clear  and  precise 
terms  :  "  They  exclude  the  inquiry  whether  the  Constitution  and 
laws  of  the  United  States  have  been  violated  by  the  judgment  which 
the  plaintiffs  in  error  seek  to  review  ;  and  maintain  that,  admitting 
such  violation,  it  is  not  in  the  power  of  the  government  to  apply  a 
corrective.  They  maintain  that  the  nation  does  not  possess  a  de- 
partment capable  of  restraining  peaceably,  and  by  authority  of 
law,  any  attempts  which  may  be  made  by  a  part  against  the 
legitimate  powers  of  the  whole  ;  and  that  the  government  is  reduced 
to  the  alternative  of  submitting  to  such  attempts,  or  of  resist- 
ing them  by  force.  They  maintain  that  the  Constitution  of  the 
United  States  has  provided  no  tribunal  for  the  final  construction  of 
itself,  or  of  the  laws  or  treaties  of  the  nation  ;  but  that  this  power  may 
be  exercised  in  the  last  resort  by  the  courts  of  every  State  of  the 
Union  ;  that  the  Constitution,  laws,  and  treaties,  may  receive  as  many 
constructions  as  there  are  States  ;  and  that  this  is  not  a  mischief,  or  if 
a  mischief,  is  irremediable.  These  abstract  propositions  are  to  be 
determined  :  for  he  who  demands  decision  without  permitting  inquiry, 
affirms  that  the  decision  he  asks  does  not  depend  upon  inquiry. 

"  If  such  be  the  Constitution,  it  is  the  duty  of  the  Court  to  bow  with 
respectful  submission  to  its  provisions.  If  such  be  not  the  Constitu- 
tion, it  is  equally  the  duty  of  the  Court  to  say  so,  and  to  perform  that 
task  which  the  American  people  have  assigned  to  the  judicial  depart- 
ment." 

I  cannot  hope  to  present  within  the  limits  of  this  sketch,  even  an 
epitome  of  the  profound  and  unanswerable  argument  with  which  the 


4-10  LIVES   OF  THE  CHIEF-JUSTICES. 

Chief-Justice  sustained  the  judgment  of  the  Court  in  this  interesting 
case — an  argument,  which,  to  say  nothing  of  its  value  as  a  broad  and 
comprehensive  and  accurate  exposition  of  constitutional  law,  presents 
one  of  the  most  admirable  specimens  of  juridical  logic  which  ever  flowed 
from  the  pen  of  Marshall  himself.  On  a  preceding  page  I  have 
noticed  the  principles  established  by,  and  which  followed  the  decision 
in  the  case  of  Marbury  vs.  Madison,  and  especially  the  principle  laid 
down  by  the  Court  in  the  opinion  of  Justice  Story,  in  the  case  of  Mar- 
tin vs.  Hunter's  Lessees,*  that  the  appellate  jurisdiction  of  the  Su- 
preme Court  extends  to  a  final  judgment  of  the  highest  court  of  a 
State,  where  the  validity  of  a  State  law  is  drawn  in  question  as  being 
against  the  Constitution,  treaties,  and  laws  of  the  United  States,  and 
the  decision  of  the  State  court  has  been  in  favor  of  such  their  validity. 
The  constitutionality  of  the  same  provision  was  now  re-examined,  and 
a  flood  of  light  thrown  upon  the  subject  by  the  luminous  mind  of 
Marshall,  and  the  principle  placed  upon  a  foundation  from  which  it 
can  never  again  be  dislodged.  It  was  held  to  be  no  valid  objection  to 
the  appellate  jurisdiction  of  the  Supreme  Court,  that  one  of  the 
parties  was  a  sovereign  State,  and  the  other  a  citizen  of  that  State. 
The  Constitution  was  the  supreme  law  of  the  land,  and  the  Court  the 
interpreter  of  that  Constitution  ;  and  the  judicial  power,  as  originally 
given,  extends  to  all  cases  arising  under  the  Constitution  or  a  law  of 
the  United  States,  whoever  may  be  the  parties.f 

*  1  Wheaton's  Reports,  304. 

t  Mr.  Jefferson  was  never  satisfied  with  this  opinion,  iior  were  some  others  of  the 
most  eminent  of  the  statesmen  and  jurists  of  Virginia.  Judge  Roane  wrote  a  very 
able  review  of  it  for  the  Enquirer,  under  the  signature  of  Algernon  Sidney.  In 
reference  to  this  review  Jefferson  says,  in  a  letter  to  Judge  Johnson,  that  it  ap- 
peared to  him  "  to  pulverize  every  word  which  had  been  delivered  by  Judge 
Marshall,  of  the  extra-judicial  part  of  his  opinion ;  and  all  was  extra-judicial,  ex- 
cept the  decison  that  the  act  of  Congress  had  not  purported  to  give  to  the  Corpo- 
ration of  Washington  the  authority  claimed  by  their  lottery  law,  of  controlling 
the  laws  of  the  States  within  the  States  themselves."  Jefferson  regarded  as  extra- 
judicial  the  doctrine  laid  down,  as  he  says,  by  the  Chief-Justice,  that  notwithstand- 
ing the  amendment  to  the  Constitution,  a  State  could  be  brought  to  the  bar  of  the 
Supreme  Court,  and  that  Congress  might  authorize  a  corporation  of  its  territory  to 
exercise  legislative  power  within  a  State,  and  paramount  to  the  laws  of  the  State. 
"  This  doctrine,"  he  observes,  "was  so  completely  refuted  by  Roane,  that  if  he 
can  be  answered,  I  surrender  human  reason  as  a  vain  and  useless  faculty,  given  to 
bewilder,  and  not  to  guif>«  »<5" — i  Jefferson's  Writings,  371,  372. 


JOHN  MARSHALL.  4/Q 

Upon  the  general  merits  of  the  case  itself,  which  was  afterwards 
argued  by  Mr.  Ogden  and  Mr.  Pinkney  for  the  plaintiffs,  and  by  Mr. 
Webster  for  the  defendants,  the  Chief-Justice  delivered  a  brief  opinion, 
holding  that  the  act  of  Congress  incorporating  the  city  of  Washington, 
nnder  which  the  sale  of  the  lottery  tickets  was  authorized,  was  no  de- 
fence to  an  indictment  for  a  violation  of  the  statutes  of  Virginia. 
The  act  of  Congress  did  not  authorize  the  corporation  to  force  the.  sale 
of  lottery  tickets  in  states  where  such  sale  was  prohibited  by  law. 

I  am  justified  in  breaking  the  thread  of  this  hasty  review  of  Chief- 
Justice  Marshall's  constitutional  decisions,  by  a  brief  reference 
to  one  case  not  included  under  this  head,  which  seems  to  de- 
mand some  notice,  both  on  account  of  its  novelty  and  interest, 
as  well  as  of  its  own  intrinsic  importance.  It  is  the  case  of 
Johnson  vs.  Mclntosh,*  argued  and  decided  at  the  session  of 
the  Court  in  1823 — a  case  which  opened  the  entire  range  of  dis- 
cussion relative  to  the  origin  and  ground  of  the  title  to  lauds 
claimed  by  the  European  nations  in  America,  and  of  the  right  now  ex- 
ercised by  the  government  of  the  United  States  over  territories  occu- 
pied by  the  Indian  tribes.  The  plaintiff  claimed  title  to  lands  in 
Illinois,  under  a  grant  from  the  Piankeshaw  Indians  ;  the  defendant 
under  a  grant  from  the  United  States.  The  opinion  of  the  Court,  de- 
livered by  the  Chief-Justice,  covers  the  entire  ground,  and  leaves  little 
room  for  further  discussion.  It  may  be  taken  as  a  complete  text-book 
on  the  subject,  and  has  been  held  in  all  subsequent  cases  to  be  an  ulti- 
mate and  settled  rule  of  decision.  He  traces,  with  a  clear  and  infalli- 
ble precision  of  statement,  the  origin  of  the  right  claimed  by  discovery, 
the  recognition  of  the  principle  by  the  European  powers,  and  its  adop- 
tion by  the  United  States  ;  he  examines  the  foundation  and  limitation 
of  the  right  of  conquest,  the  application  of  the  principle  to  the  case 
of  the  Indian  savages,  and  the  nature  generally  of  the  Indian  titles. 
These  titles,  as  ultimate  titles  to  the  fee  of  the  soil,  could  uot  now  be 
sustained  in  America.  The  fee  originally  vested  in  the  British  govern- 
ment by  discovery,  according  to  the  acknowledged  law  of  civilized  na- 
tions, had  passed  by  the  Revolution  to  the  United  States,  and  the 
Indian  title  was  a  right  of  occupancy  merely,  which  the  discoverers, 
or  in  this  case,  the  government,  had  the  exclusive  right  of  acquiring 
*  8  Wkcatoa's  Reports,  5-13. 


412  LIVES  OF  THE  CHIEF-JUSTICES. 

The  magnitude  of  the  interests  in  litigation,  and  the  able  and  elabo- 
rate arguments  at  the  bar,  rather  than  any  intrinsic  difficulty  in  the 
subject  itself,  as  the  Chief-Justice  remarks,  had  impelled  him  to  a  more 
than  usually  careful  and  mature  consideration  of  the  subject  under 
discussion. 

Returning  to  a  consideration  of  the  constitutional  judgments  and 
opinions  of  Chief-Justice  Marshall,  the  next  case  that  meets  us  is  the 
famous  case  of  Gibbons  vs.  Ogden,*  known  as  the  Great  New  York 
Steamboat  case,  which  was  decided  at  the  session  of  the  court  in 
1824.  Though  belonging  to  the  same  class  of  cases  which  have  been 
heretofore  considered,  involving  a  question  of  sovereignty  between  State 
legislation  and  the  Federal  government ;  yet  it  presented  an  entirely 
new  point  for  consideration,  namely,  as  to  the  construction  and  ex- 
tent of  that  clause  of  the  Constitution  vesting  Congress  with  power 
to  regulate  commerce  among  the  several  states.  The  State  of  New 
York  had  granted  to  Messrs.  Fulton  and  Livingston  the  exclusive 
right  to  navigate  all  the  waters  of  the  State  with  vessels  moved  by 
steam.  The  plaintiff,  Ogden,  to  whom  the  right  had  been  assigned, 
filed  a  bill  for  a  perpetual  injunction  against  Gibbons,  who  had  in- 
fringed upon  this  right  by  navigating  the  river  with  steamboats,  duly 
enrolled  and  licensed  for  the  coasting  trade,  under  an  act  of  Con- 
gress. The  question  was,  as  to  the  Constitutionality  of  the  law  of 
New  York.  Chancellor  Kent  sustained  the  injunction,  and  the  decree 
had  been  affirmed  by  the  New  York  Court  for  the  Correction  of 
Errors.  From  this  judgment  the  cause  was  carried  to  the  Supreme 
Court  of  the  United  States.  It  has  been  said,  that  no  cause,  up  to 
that  date,  in  the  Supreme  Court,  had  ever  excited  a  greater  degree  of 
interest  and  expectation  in  the  country  than  this,  and  that  none  was 
ever  argued  with  greater  ability.  The  Attorney-General  Wirt,  and 
Daniel  Webster,  were  the  counsel  who  contested  the  constitutionality 
of  these  laws  ;  their  opponents  were  Emmett  and  Oakley,  qf  New 
York,  who,  with  the  zeal  natural  to  citizens  of  the  great  State  which 
bad  granted  the  exclusive  privilege,  and  with  all  the  resources  which 
the  highest  legal  attainments  and  the  most  accomplished  skill  could 
supply,  vindicated  the  laws  in  question.  It  was  a  most  brilliant  pas- 

*  9  Whcaton's  Reports,  1. 


JOHN  MARSHALL. 


413 


sage  at  arms,  in  a  forensic  tourney  ;  *  a  combat,  as  Wirt  had  pre- 
dicted, well  worth  witnessing.  The  passage  between  Wirt  and  Em- 
mett,  which  is  preserved  in  the  report,  and  is  so  familiar  as  to  be 
repeated  in  schoolboy  declamations,!  is  certainly  one  of  the  finest  that 
is  anywhere  to  be  found  in  the  range  of  forensic  discussions,  and 
would  alone  suffice  to  relieve  a  multitude  of  dull  and  tedious  legal 

*  See  Kennedy's  Life  of  Wirt,  VoL  H.  p.  142.  In  a  letter  to  Judge  Carr,  a  few 
days  before  the  argument  Wirt  writes :  "  To-morrow  begin  my  toils  in  the  Su- 
preme Court,  and  about  to-morrow  week  will  com©  on  the  great  Steamboat  ques- 
tion from  New  York.  Emmett  and  Oakley  on  one  side,  Webster  and  myself  on 
the  other.  Come  down  and  hear  it.  Emmett's  whole  soul  is  in  the  cause,  and  he 
will  stretch  all  his  powers.  Oakley  is  said  to  be  one  of  the  first  logicians  of  the 
age  ;  as  much  a  Phocion  as  Emmett  is  a  Themistocles ;  and  Webster  is  as  ambi- 
tious as  Ctesar.  He  will  not  be  outdone  by  any  man,  if  it  is  within  the  compass  of 
his  power  to  avoid  it.  It  will  be  a  combat  worth  witnessing." 

t  Mr.  Kennedy,  in  his  Life  of  Wirt,  says,  that  the  part  of  the  sentence  below 
which  is  italicised,  is  interpolated  after  the  reply  of  Wirt,  and  when  the  case  was 
innrlo  up  for  publication.  "  New  York,"  says  Emmett,  alluding  to  the  results 
of  the  genius  of  Fulton,  "  may  proudly  raise  her  head  and  cast  her  eyes  over 
the  whole  civilized  world ;  she  may  there  see  its  countless  waters  bearing  on 
their  surface  countless  offerings  of  her  munificence  and  wisdom.  She  may  fondly 
calculate  on  their  speedy  extension  in  every  direction  and  through  every  region, 
from  Archangel  to  Calcutta,  and  justly  arrogating  to  herself  the  labors  of  the 
man  she  cherished,  and  conscious  of  the  value  of  her  own  good  works,  she  may 
turn  the  mournfvl  exclamation  of  JEneas  into  an  expression  of  triumph,  and 
exullingly  ask — 

"  '  QUK  regie  in  terris,  nostri  non  plena  laboris  ?'  " 

The  reply  of  Wirt  was  one  of  the  happiest  efforts  of  his  genius  : — 
"  Sir :  it  was  not  in  the  moment  of  triumph,  nor  with  the  feelings  of  triumph, 
that  JEneas  uttered  that  exclamation.  It  was  when  with  his  faithful  Achates  by 
his  side,  he  was  surveying  the  works  of  art,  with  which  the  palace  of  Carthage 
was  adorned,  and  his  attention  had  been  caught  by  a  representation  of  the  battles 
of  Troy.  There  he  saw  the  eons  of  Atreus  and  Priam,  and  the  fierce  Achilles. 
The  whole  extent  of  his  misfortunes,  the  loss  and  desolation  of  his  friends,  the  fall 
of  his  beloved  country  rushed  upon  his  recollection : 

«  Constitit,  et  l&chrymans,  qnis  jam  locus,  inquit  Achate, 
Qua  regio  In  terris,  nostri  non  plena  laboris? '  " 

Wirt  pressed  the  application  in  the  most  felicitous  and  appropriate  language. 
If  the  state  of  things  should  continue,  if  the  anarchy  which  New  York  had  sown 
should  not  be  extirpated,  and  a  war  of  legislation  should  follow,  the  Constitution 
would  ultimately  fall,  and  our  republican  institutions  perish.  And  what,  then, 


414:  LIVES  OF  THE  CHIEF-JUSTICES. 

discussions.  Leaving  the  reader,  however,  if  his  curiosity  prompts, 
to  study  all  that  remains  of  the  discussion,  as  it  is  found  in  the  pub- 
lished report,  I  shall  proceed  to  notice  briefly  the  final  result  of  the 
case,  and  the  conclusions  laid  down  by  the  Chief-Justice  in  pronounc- 
ing the  judgment  of  the  court. 

The  constitutionality  of  these  laws  had  been  maintained  in  New 
York  by  the  Legislature,  the  council  of  revision,  even  in  Jay's  time, 
and  unanimously  by  the  judges  of  the  Supreme  Court  and  the  Court 
for  the  Correction  of  Errors.  In  Livingston  vs.  Van  Ingen,*  in  1812, 
the  Chancellor  had  indeed  refused  to  restrain,  by  injunction,  a  viola- 
tion of  the  right,  but  rather  from  serious  doubts  as  to  the  propriety 
of  the  remedy  than  from  any  conviction  of  the  unconstitutionally  of  the 
laws.  This  order,  however,  had  been  unanimously  reversed  by  the 
Court  for  the  Correction  of  Errors,  of  which  the  judges  of  the  Su- 
preme Court  were  ex-officio  members,  and  at  a  time  too  when  the 
latter  court  was  presided  over  by  JAMES  KENT,  and  dignified  and 
ennobled  by  the  learning  and  ability  of  SMITH  THOMPSON,  AMBROSE 
SPENCER,  WILLIAM  W.  VAN  NESS,  and  JOSEPH  C.  YATEs.f  In  the 
present  case,  Kent,  who  had  then  become  Chancellor,  had,  without 
hesitation,  granted  an  injunction  to  restrain  the  infringement  of  the 
right  claimed  under  these  laws.J  "  We  must  be  permitted,"  he  re- 
marks in  his  opinion,  "  to  require,  at  least,  the  presence  and  clear 

would  be  the  effect  ?  Despotism  would  everywhere  triumph,  and  would  cover  the 
earth  with  the  mantle  of  mourning.  "  Then,  sir,"  he  exclaimed,  "  when  New  York 
shall  look  upon  this  scene  of  ruin,  if  she  have  the  generous  feelings  which  I  be- 
lieve her  to  have,  it  will  not  be  with  her  head  aloft  in  the,  pride  of  conscious  tri- 
umph, <  her  wrapt  soul  sitting  in  her  eyes.'  No,  sir,  no !  Dejected  with  shame 
and  confusion,  drooping  under  the  weight  of  her  sorrow,  with  a  voice  suffocated 
with  despair,  well  may  she  exclaim : 

quis  jam  locus 

Quas  regio  in  terris,  nostri  non  plena  laboris." 

*  9  Johnson's  Reports,  507. 

t  Each  of  these  Judges  delivered  opinions  in  favor  of  sustaining  the  laws  of 
New  York,  and  of  their  constitutionality,  except  Judge  Spencer,  who,  being  related 
to  one  of  the  parties,  declined  giving  any  opinion.  The  opinions  of  Chief-Justice 
Kent  and  Judge  Thompson  upon  the  Constitutional  question,  are  unusually  vigor- 
ous and  able,  and  should  be  carefully  studied,  in  connexion  with  that  of  Chief- 
Justice  Marshall,  by  those  who  desire  thoroughly  to  investigate  the  subject  on 
both  sides. 

t  Ogden  35.  Gibbons,  4  John.  Ch.  R.  150. 


JOHN  MARSHALL.  415 

manifestation  of  some  constitutional  law,  or  some  judicial  decision  of 
the  supreme  power  of  the  Union,  acting  upon  those  laws,  in  direct 
collision  and  conflict,  before  we  can  retire  from  the  support  and 
defence  of  them.  We  must  be  satisfied  that — 

Neptunus  muros,  magnoque  emota  tridenti 
Fundamenta  quatit" 

And  the  Court  for  the  Correction  of  Errors  had  unanimously  ap- 
proved the  decision. 

It  required  no  small  degree  of  moral  courage  and  firmness  on  the 
part  of  the  Supreme  Court,  to  unsettle  a  decision  thus  sustained  ;  to 
restrain  a  power  that  had  been  exercised  by  one  of  the  States,  almost 
without  question,  from  the  foundation  of  the  Union  ;  to  lop  off,  with 
the  keen  edge  of  the  Constitutional  axe,  a  branch  of  State  sovereignty, 
which  by  the  growth  of  years  had  become  so  firmly  engrafted  as  to  be 
scarcely  distinguishable  from  the  parent  trunk  ;  and  to  assert  the  su- 
premacy of  the  Federal  authority  over  State  legislation,  in  a  case 
where  its  existence  had  been  expressly  denied  by  one  of  the  ablest  and 
most  accomplished  jurists  of  that,  or  any  age,*  and  one  who  was 
supposed  to  some  extent  at  least  to  share  the  same  opinions,  and  was 
a  member  of  the  same  political  school  with  Marshall  himself.  But  the 
Chief-Justice  was  fully  equal  to  the  responsibility,  though  he  seems  to 
have  encountered  it  with  a  deep  sense  of  its  magnitude.  Referring  to 
the  principle  contended  for  by  New  York,  he  remarks  :  "  It  is  sup- 
ported by  great  names — by  names  which  have  all  the  titles  to  con- 
sideration, that  virtue,  intelligence,  and  office  can  bestow.  No  tribunal 
can  approach  the  decision  of  this  question  without  feeling  a  just  and 
real  respect  for  that  opinion  which  is  sustained  by  such  authority  ; 
but  it  is  the  province  of  this  Court,  while  it  respects,  not  to  bow  to  it 
implicitly;  and  the  judges  must  exercise,  in  the  examination  of  the  sub- 
ject, that  understanding  which  Providence  has  bestowed  upon  them, 
with  that  independence  which  the  people  of  the  United  States  expect 
from  this  department  of  government."  The  result  of  the  examination 
which  the  Chief-Justice  thus  bestowed  upon  the  subject  was,  that  the 
laws  of  New  York  were  repugnant  to  that  clause  of  the  Constitution 
which  authorizes  Congress  to  regulate  commerce  among  the  several 

*  Chancellor  Kent. 


416  LIVES  OF  THE  CHIEF- JUSTICES. 

States.  This  conclusion  is  sustained  by  an  argument  of  wonderful 
acuteness  of  reasoning,  and  full  of  subtle  distinctions,  but  built  up  and 
supported  by  those  well-known  principles  of  Constitutional  construc- 
tion which  pervade  all  his  opinions.  Commerce  among  the  States,  he 
held,  cannot  stop  at  the  external  boundary  line  of  each  State,  but 
may  be  introduced  into  the  interior.  The  power  to  regulate  com- 
merce, conferred  by  the  Constitution  on  Congress,  comprehends  navi- 
gation within  the  limits  of  every  State  in  the  Union,  so  far  as  that 
navigation  may  be  in  any  manner  connected  with  "  commerce  with 
foreign  nations,  or  among  the  several  States,  or  with  the  Indian 
tribes."  It  may  of  consequence  pass  the  jurisdictional  line  of  New 
York,  and  act  upon  the  very  waters  to  which  the  prohibition  under 
consideration  applies.  This  power,  exercised  in  pursuance  of  the  Con- 
stitution, is  supreme,  and  State  laws  must  yield  to  it,  even  though  en- 
acted under  powers  acknowledged  to  remain  in  the  States.  The  act 
of  Congress  for  enrolling  and  licensing  vessels  to  be  employed  in  the 
coasting  trade,  authorizes  the  navigation  of  such  waters,  and  em- 
braces all  vessels,  whether  propelled  by  sails  and  oars  or  by  steam. 
After  being  so  enrolled,  they  are  entitled  to  the  same  privileges,  and 
can  no  more  be  restrained  from  navigating  waters,  and  entering  ports 
which  are  free  to  such  vessels,  than  if  they  were  wafted  on  their  voy- 
age by  the  winds,  instead  of  being  propelled  by  the  agency  of  fire. 
The  one  element  may  be  as  legitimately  used  as  the  other,  for  every 
commercial  purpose  authorized  by  the  laws  of  the  TMon  ;  and  the 
act  of  a  State  inhibiting  the  use  of  either,  to  any  vessel  having  a  li- 
cense under  the  act  of  Congress,  comes  in  direct  collision  with  the 
Constitutional  powers  of  the  general  government,  and  is  void.* 

In  this  opinion,  which,  though  as  ingeniously  reasoned,  is  perhaps 
*  The  extent  to  which  it  has  been  attempted  to  carry  this  principle,  may  be  seen 
by  reference  to  the  recent  case  of  Veasie  et  al.  vs.  Moor,  December  Term,  1852, 
14  How.  568,  in  which  it  was  argued  that  a  law  of  the  State  of  Maine,  granting 
exclusive  navigation  in  the  upper  part  of  Penobscot  River,  to  a  manufacturing 
company,  who  were  to  improve  that  part  of  the  river,  was  contrary  to  the  Consti- 
tution of  the  United  States.  The  river  lies  entirely  within  the  State  of  Maine, 
and  the  part  in  which  the  Exclusive  privilege  was  granted  was  not  navigable, 
being  cut  off  by  several  dams,  erected  for  manufacturing  purposes.  This  extraor- 
dinary proposition,  however,  found  no  favor  with  the  Court.  The  law  of  Maine 
was  held  to  be  valid  ;  Mr.  Justice  Daniel  delivering  the  opinion,  from  which  them 
appears  to  be  no  dissent. 


JOHN    MARSHALL.  417 

less  conclusive,  than  some  of  those  masterly  arguments  upon  which 
the  fame  of  Marshall  as  a  jurist  is  built,  he  makes  some  strictures  upon 
that  doctrine  of  a  rigid  construction  of  constitutional  power  which  has 
been  a  cardinal  theory  with  some  of  the  ablest  and  wisest  statesmen 
the  country  has  produced,  and  especially  those  of  his  own  State.  In 
the  frank  exposition  of  his  views  upon  all  constitutional  questions 
which  I  have  designed  to  give,  it  would  not  be  proper  to  pass  over  or 
conceal  his  opinions  upon  these  points.  It  must  be  confessed  that  he 
was  not  an  advocate  of  a  strict  construction  of  the  Constitution,  as 
that  doctrine  was  understood  by  those  iHustrious  men  who  formed  the 
republican  party.  And  yet,  on  the  other  hand,  justice  requires  it  to 
be  also  said,  that  he  never  assumed  or  advocated  the  doctrine  that  a 
power  could  be  exercised  which  was  not  granted  either  expressly  in 
the  words  of  the  Constitution,  or  by  necessary  implication.  "  What  do 
gentlemen  mean  by  a  strict  construction  ?"  he  inquires  in  this  opinion. 
"  If  they  contend  only  against  that  enlarged  construction  which  would 
extend  words  beyond  their  natural  and  obvious  import,  we  might 
question  the  application  of  the  term,  but  should  not  controvert  the 
principle.  If  they  contend  for  that  narrow  construction  which,  in 
support  of  some  theory  not  to  be  found  in  the  Constitution,  would 
deny  to  the  Government  those  powers  which  the  words  of  the  grant, 
as  usually  understood,  import,  and  which  are  consistent  with  the 
general  views  and  objects  of  the  instrument ;  for  that  narrow  con- 
struction which  would  cripple  the  Government,  and  render  it  unequal 
to  the  objects  for  which  it  is  declared  to  be  instituted,  and  to  which 
the  powers  given,  as  fairly  understood,  render  it  competent ;  then  we 
cannot  perceive  the  propriety  of  this  strict  construction,  nor  adopt  it 
as  the  rule  by  which  the  Constitution  is  to  be  expounded."  And 
again,  at  the  close  of  the  opinion,  "  Powerful  and  ingenious  minds, 
taking,  as  postulates,  that  the  powers  expressly  granted  to  the  Govern- 
ment of  the  Union,  are  to  be  contracted  by  construction  into  the  narrow- 
est possible  compass,  and  that  the  original  powers  of  the  States  are 
retained,  if  any  possible  construction  will  retain  them,  may,  by  a 
course  of  well  digested,  but  refined  and  metaphysical  reasoning,  found- 
ed on  these  premises,  explain  away  the  Constitution  of  our  country, 
and  leave  it  a  magnificent  structure,  indeed,  to  look  nt,  but  totally 
unfit  for  use.  They  may  so  entangle  and  perplex  the  understanding, 
27 


418  LIVES   OF  THE  CHIEF-JUSTICES. 

as  to  obscure  principles,  which  were  before  thought  quite  plain,  and 
induce  doubts  where,  if  the  mind  were  to  pursue  its  own  course,  none 
would  be  perceived.  In  such  a  case,  it  is  peculiarly  necessary  to  recur 
to  safe  and  fundamental  principles,  and,  when  sustained,  to  make  them 
the  tests  of  the  arguments  to  be  examined." 

It  was  at  this  term  that  SMITH  THOMPSON,  of  New  York,  took 
his  seat  for  the  first  time  on  the  bench  of  the  Supreme  Court,  in  place 
of  Brockholst  Livingston/who  had  died  the  previous  year.*  Judge 

*  The  name  of  LIVINGSTON  is  conspicuous  in  the  annals  of  the  State  of  New 
York.  The  family  is  of  Scottish  origin,  and  at  a  very  early  period  seated  what  is 
now  known  as  the  Livingston  Manor,  on  the  Hudson  River,  in  Columbia  county, 
New  York.  The  three  brothers,  Robert  R.,  Brockholst,  and  Edward  Livingston, 
were  all  men  of  commanding  abilities.  The  Chancellor  was  the  eldest,  and 
figured  conspicuously  in  the  revolutionary  troubles,  and  in  the  early  political 
contests  of  the  State.  Edward  Livingston,  the  youngest  of  these  brothers,  is  too 
well  known  as  a  statesman  and  jurist  to  require  even  a  passing  notice  in  this 
place.  Elected  in  1794,  at  the  age  of  thirty  years,  a  member  of  Congress, 
he  entered  upon  a  brilliant  career,  which  his  removal  to  New  Orleans,  in  1804, 
enabled  him  to  pursue  with  still  more  eminent  and  flattering  success.  Again 
elected  to  the  House  of  Representatives  in  1823,  transferred  to  the  Senate  in  1829, 
appointed  Secretary  of  State  in  1831,  and  Minister  to  France  in  1833,  where, 
thirty  years  before,  his  brother,  the  Chancellor,  had  preceded  him ; — all  these  well- 
merited  honors  can  scarcely  add  to  the  undying  fame  of  the  civilian  and  jurist 
who  framed  the  code  of  Louisiana. 

BROCKHOLST  LIVINGSTON  is  a  name  not  so  well  known  in  our  day.  He  was 
born  about  the  year  1757,  and  at  the  declaration  of  Independence  had  just  arrived 
at  the  age  of  manhood.  He  took  an  active  and  decided  part  in  behalf  of  his 
country  in  the  struggle  with  Great  Britain,  and  at  the  close  of  the  war  devoted 
himself  to  the  practice  of  the  law,  to  which  he  had  been  educated.  Mr.  Livingston 
was  for  many  years  a  prominent  and  successful  advocate  at  the  bar.  In  the  earlier 
New  .York  reports  his  name  frequently  appears  on  the  record  as  counsel.  It 
seems,  too,  that  he  engaged  in  some  of  the  criminal  trials  of  that  period,  as  we 
find  him  employed  for  the  defence  in  the  prosecution  of  Frothingham,  before  the 
New  York  Oyer  and  Terminer,  in  1799,  for  a  libel  on  General  Hamilton.  On  the 
8th  of  January,  1802,  Livingston  and  Smith  Thompson  were  appointed  puisne 
Judges  of  the  Supreme  Court  of  the  State,  Morgan  Lewis  being  then  Chief-Justice, 
and  Kent  and  ReAcllff  puisnes.  This  place  he  held  until  1806,  when  he  resigned 
it  on  his  appointment  as  one  of  the  Associate-Justices  of  the  Supreme  Court  of  the 
United  States.  Judge  Livingston  died  a  few  days  after  the  close  of  the  session  of 
the  Court,  on  the  18th  of  March,  1823,  in  the  sixty-sixth  year  of  his  age. 

"  He  had  served  his  country,"  says  Mr.  Wheaton,  in  a  brief  notice  of  the  death 
of  Judge  Livingston,  "  with  distinguished  military  reputation  during  the  war  of 


JOHN  MARSHALL.  419 

Thompson  was  Secretary  of  the  Navy  at  the  time  of  his  appointment, 
and  being  reluctant,  to  accept  the  office,  the  matter  was  for  a  little 
while  held  in  suspense.  During  the  interval  the  name  of  Chancellor  Kent 
was  brought  forward  by  some  of  his  friends.  The  main  objection  to 
this  accomplished  jurist  seems  to  have  been  his  connexion  with  the 
Federal  party,  a  barrier  which  even  in  those  times  of  moderate  party 
heat,  could  not  be  entirely  disregarded.  Notwithstanding  this,  some 
of  the  warmest  friends  of  President  Monroe  recommended  the  selec- 
tion of  the  Chancellor,  in  case  Judge  Thompson  should  decline,  and 
among  them  the  Attorney-General,  Mr.  Wirt,  who  wrote  a  long  and 
earnest  letter  to  the  President,  urging  the  appointment  irrespective  of 
party  considerations,  and  as  a  matter  of  national,  not  of  mere  local  in- 
terest. It  is  not  certain  but  that  the  President  might  have  considered 
the  suggestion  favorably,  if  the  acceptance  of  Judge  Thompson  *  had 
not  rendered  further  action  on  the  subject  unnecessary. 

the  revolution,  and  subsequently  filled  several  important  civil  stations  at  home 
and  abroad.  He  was  an  accomplished  classical  scholar,  and  versed  in  the  elegant 
languages  and  literature  of  the  southern  nations  of  Europe.  At  the  bar  he  was 
an  ingenious  and  learned  advocate,  fruitful  in  invention,  and  possessing  a  brilliant 
and  persuasive  elocution.  On  the  bench  his  candor  and  modesty  were  no  less 
distinguished  than  his  learning,  acuteness,  and  discrimination.  His  genius  and 
taste  had  directed  his  principal  attention  to  the  maratime  and  commercial  law ; 
and  his  extensive  experience  gave  to  his  judgments  in  that  branch  of  jurispru- 
dence a  peculiar  value,  which  was  enhanced  by  the  gravity  and  beauty  of  his 
judicial  eloquence.  In  private  life  he  was  beloved  for  his  amiable  manners  and 
general  kindness  of  disposition,  and  admired  for  all  those  qualities  which  consti- 
tute the  finished  gentleman.  He  died  with  the  deep  regret  of  all  who  knew  him ; 
leaving  behind  him  the  character  of  an  upright,  enlightened,  and  humane  judge, 
a  patriotic  citizen,  and  a  bright  ornament  of  the  profession.  Isque  et  oralonm 
in  numero  est  habendus,  etfuit  reliquis  rebus  ornatus,  atque  elegant." 

*  SMITH  THOMPSON  brought  to  the  bench  of  the  Supreme  Court  the  thorough  judi- 
cial education  and  experience  acquired  by  a  service  of  seventeen  years  in  the 
Supreme  Court  of  New  York,  at  a  time  when  that  tribunal  might  claim,  in  point 
of  dignity,  talent,  and  learning,  to  rank  with  any  in  the  civilized  world.  Educa- 
ted to  the  bar,  and  admitted  to  practice  at  an  early  age,  he  devoted  himself  with 
untiring  energy  and  industry  to  his  profession.  A  brief  service  in  the  State  legis- 
lature could  scarcely  be  said  to  interrupt  these  labors,  which  were  continued  with 
unabated  ardor  down  to  the.  time  of  his  elevation  to  the  bench  of  the  New  York 
Supreme  Court.  During  the  period  of  Thompson's  practice,  the  New  York  bar 
was  adorned  with  a  galaxy  of  talent,  which,  without  the  least  disparagement  to 


420  LIVES  OF  THE  CHIEF- JUSTICES. 

This  was  the  first  change  that  had  been  made  in  the  Supreme 
Court  since  Judge  Story's  appointment  in  1812.  I  may  here  properly 
note  the  few  other  changes  which  occurred  during  the  remainder  of 

the  bar  of  any  other  State,  may  be  pronounced  wholly  unrivalled.  Among  them 
wero  such  men  as  the  Livingstons — Brockholst  aud  Edward — Hamilton.  Harrison, 
Hoffman,  Burr,  Pendleton,  and  the  then  junior  membars  of  the  profession,  such 
as  Spencer,  Van  Vechten,  Henry,  Ogden,  Elisha  Williams,  and — "  the  brightest 
genius  of  them  all ;' — William  W.  Van  Ness.  The  first  and  second  volumes  of 
Johnson's  cases  are  the  only  published  New  York  reports,  anterior  to  the  time  of 
Judge  Thompson's  appointment  to  the  bench.  They  do  not  show  him  to  have 
been  at  that  time  engaged  in  a  very  extensive  counsel  practice  in  the  Supreme 
Court,  many,  and  indeed  most  of  the  important  cases  being  committed  to  the  «are 
of  the  veterans  of  the  profession — Hamilton  and  Harrison,  Livingston  and  Burr, 
Pendleton  and  Troup.  That  he  stood  deservedly  high  is  evident,  however,  from 
the  fact  of  his  being  chosen,  v/hile  still  comparatively  a  young  man,  from  among 
such  a  bar.  and  appointed  with  Brockholst  Livingston  to  a  seat  on  the  bench  of 
the  Supreme  Court.  This  appointment  was  made  on  the  8th  of  January,  1802. 
Morgan  Lewis  was  then  Chief-Justice,  and  James  Kent  one  of  the  puisnes,  having 
been  already  four  years  on  the  bench.  On  the  election  of  Judge  Lewis  as  Gov- 
ernor of  the  State,  in  1804,  Kent  became  Chief-Justice,  and  Judge  Ratcliff  having 
resigned,  Ambrose  Spencer  and  Daniel  D.  Tompkins  were  appointed  Associates. 
Such  was  the  New  York  Supreme  Court  at  that  period  and  for  some  years  after- 
wards— KENT,  LIVINGSTON,  THOMPSON,  SPENCER,  and  TOMPKINS — an  association  of 
judicial  talent,  that  was  never  before,  and  has  never  since,  been  seen  at  any  one 
time  in  our  State.  On  the  appointment  of  Kent  as  Chancellor,  February  25th, 
1814,  Judge  Thompson  succeeded  him  as  Chief-Justice.  He  presided  over  the 
Court  until  his  appointment  as  Secretary  of  the  Navy,  and  was  succeeded  in  the 
Chief-Justiceship  by  Judge  Spencer,  February  9th,  1819 

Judge  Thompson  took  his  seat  on  the  bench  of  the  Supreme  Court  of  the  United 
States  on  the  tenth  day  of  February,  1821,  and  continued  in  the  discharge  of  its 
duties  to  the  time  of  his  death,  in  1843.  Thus  it  will  be  seen  that  he  was  on  the 
bench  in  all  nearly  thirty-nine  years — one  of  the  longest,  as  it  certainly  is  one  of  the 
most  honorable,  judicial  careers  on  record.  His  opinions  in  the  United  States 
Supreme  Court  are  to  be  found  in  the  last  four  volumes  of  Wheaton  and  the  six- 
teen volumes  of  Peters'  Reports ;  those  in  the  New  York  Supreme  Court,  in  the 
first  fifteen  volumes  of  Johnson.  The  author  of  the  eulogy  on  Judge  Spencer  very 
properly  characterizes  the  Reports  of  Johnson  as  "  by  far  the  most  valuable,  relia- 
ble, and  authoritative  record  of  American  common  law,"  anywhere  to  be  found. 
Those  containing  the  opinions  of  Judge  Thompson  abundantly  show  that  the  record 
of  this  common  law  bears  indelibly  upon  it  the  impress  of  his  vigorous  aad  logi- 
cal mind.  With  Kent  and  Spencer  he  may  justly  claim  his  full  share  in  the  great 
work  which  the  old  Supreme  Court  entered  upon,  and  so  successfully  pro- 
secuted—that  "  of  building  up  and  consolidating  within  this  State  a  system  and 


JOHN  MARSHALL.  421 

the  period  in  which  Marshall  presided  over  the  deliberations  of  the 
Court.  On  the  death  of  Mr.  Justice  Todd,*  the  vacancy  was  filled 
by  the  appointment,  May  9th,  1826  of  ROBERT  TRIMBLE,  of  Ken- 
body  of  common  law,  applicable  and  adapted  to  the  government  and  institutions 
of  the  country." 

*  THOMAS  TODD  was  born  in  the  State  of  Virginia  on  the  23rd  of  January, 
1765.  .Having  lost  his  parents  in  early  youth,  and  been  deprived  of  the  limited 
patrimony  bequeathed  him  by  his  mother,  he  emigrated  with  the  family  of  Judge 
Innis  to  Kentucky  in  the  spring  of  1786.  "\Vhile  residing  in  the  family  of  the 
Judge  he  was  engaged  in  teaching  the  daughters  of  his  friend  by  day,  and  at 
night  prosecuting  the  study  of  the  law  by  fire-light.  He  was  admitted  to  the  bar 
soon  after  he  came  to  Kentucky,  and  practised  for  several  years  with  reputation 
and  success.  Appointed  clerk  of  the  Federal  Court  for  the  district  of  Kentucky, 
he  was  soon  after,  on  the  erection  of  the  State  Government,  chosen  clerk  of  the 
Court  of  Appeals.  This  office  he  held  until  1801,  when  ho  was  appointed  Judge 
of  the  Court  of  Appeals,  and  in  1806,  on  the  resignation  of  Judge  Muter,  Chief- 
Justice.  His  appointment  to  the  office  of  Associate-Justice  of  the  Supreme  Court 
of  the  United  States  was  the  first  intimation  to  him  that  he  had  been  thought  of 
for  that  station.  In  making  this  selection  President  Jefferson  is  said  to  have 
adopted  a  mode  different  from  that  pursued  in  later  times.  He  requested  each 
delegate  in  Congress  from  the  States  composing  the  circuit  to  communicate  to 
him  a  nomination  of  their  first  and  second  choice.  Judge  Todd  was  the  first  or 
second  upon  the  nomination  of  every  delegate,  although  to  some  of  them  he  was 
personally  unknown.  He  was  accordingly  appointed,  and  continued  in  the  hon- 
orable discharge  of  the  duties  of  Judge  of  the  Supreme  Court  until  his  death, 
February  7th,  1826. 

Judge  Story  has  spoken  of  the  intellectual  characteristics  of  his  associate  with 
his  usual  discrimination :  "  He  had  uncommon  patience  and  candor  in  investiga- 
tion ;  great  clearness  and  sagacity  of  judgment ;  a  cautious  but  steady  energy  ;  a 
well-balanced  independence  ;  a  just  respect  for  authority,  and  at  the  same  time  an 
unflinching  adherence  to  his  own  deliberate  opinions  of  the  law.  His  modesty 
imparted  a  grace  to  an  integrity  and  singleness  of  heart  which  won  for  him  the 
general  confidence  of  all  who  knew  him.  He  was  not  ambitious  of  innovations 
upon  the  settled  principles  of  the  law ;  but  was  content  with  the  more  unostenta- 
tious character  of  walking  in  the  trodden  paths  of  jurisprudence.  From  his  dif- 
fident and  retiring  habits,  it  required  a  long  acquaintance  with  him  justly  to  ap- 
preciate his  juridicial  as  well  as  his  personal  merits.  His  learning  was  of  a  useful 
and  solid  cast ;  not  perhaps  as  various  or  as  comprehensive  as  that  of  some  men ; 
but  accurate,  and  transparent,  and  applicable  to  the  daily  purposes  of  the  business 
of  human  life.  In  his  knowledge  of  the  local  law  of  Kentucky  he  was  excelled 
by  few  ;  and  his  brethren  drew  largely  upon  his  resources  to  administer  that  law, 
in  the  numerous  cases  which  then  crowded  the  docket  of  the  Supreme  Court  from 
that  judicial  circuit.  What  he  did  not  know,  he  never  affected  to  possess ;  but 


422  LIVES  OF  THE  CHIEF-JUSTICES. 

tucky.*  This  gentleman  died  after  a  service  of  little  more  than  two 
years,  and  his  place  was  filled,  March  7th,  1829,  by  the  appointment 
of  JOHN  McLEAN,  of  Ohio,  at  present  one  of  the  Associate-Justices  of 

sedulously  sought  to  acquire.  He  was  content  to  learn  without  assuming  to  dog- 
matize. Hence  he  listened  to  arguments  for  the  purpose  of  instruction,  and 
securing  examination,  and  not  merely  for  that  of  confutation  or  debate. 
Among  his  associates  he  enjoyed  an  enviable  respect,  which  was  constantly  in- 
creasing as  he  became  more  familiarly  known  to  them.  His  death  was  deemed 
by  them  a  great  public  calamity ;  and  in  the  memory  of  those  who  survived 
him,  his  name  has  ever  been  cherished  with  a  warm  and  affectionate  remem- 
brance." 

Judge  Todd  was  twice  married.  Col.  C.  S.  Todd,  so  honorably  known  for  his 
gallant  military  services,  was  one  of  his  sons  by  the  first  marriage.  His  second 
wife,  whom  he  married  in  1812,  was  the  youngest  sister  of  Mrs.  Madison,  and 
widow  of  Major  George  Washington,  a  nephew  of  the  General.  He  left  one 
daughter  and  two  sons  by  this  marriage. 

*  The  following  notice  of  JUDGE  TRIMBLE  forms  the  appropriate  introduction  to 
one  of  the  volumes  of  Peters'  Reports : — 

"  The  Honorable  Robert  Trimble,  one  of  the  Associate-Justices  of  this  Court, 
died  at  his  residence  in  Paris,  Kentucky,  in  September,  1828. 

"  Mr.  Justice  Trimble  was  born  in  Augusta  County,  Virginia,  in  1777,  and  was 
the  son  of  Mr.  William  Trimble,  one  of  the  earliest  settlers  in  Kentucky — a  vir- 
tuous man,  whose  bold,  firm,  and  enterprising  character  induced  him  to  seek  an 
increase  to  his  fortunes  by  establishing  himself  on  the  frontiers,  encountering  all 
the  dangers  and  hardships  of  a  new  aiid  advanced  settlement. 

<:  Mr.  Justice  Trimble  accompanied  his  father  when  he  emigrated,  and  the  early 
years  of  his  life  were  passed  in  agricultural  industry ;  and  frequently  in  the 
amusements  and  toils  of  the  chase,  upon  the  success  of  which  settlers  often  depend- 
ed for  food.  He  was  sometimes  engaged  in  defence  against  Indian  invasion,  to 
which  the  borderers  were  then  constantly  exposed.  He  was  distinguished  in  his 
youth  for  his  conduct,  his  courage,  and  his  sagacity  ;  and  was  acknowledged  as  a 
leader  Ly  his  associates. 

"  The  native  and  powerful  energies  of  his  mind  could  not  be  restrained  by  the 
situation  in  which  he  was  placed  ;  and  he  became  desirous  of  obtaining  an  educa- 
tion which  would  fit  him  for  higher  dutiea  By  teaching  an  English  school  he 
procured  the  means  of  entering  Bourbon  Academy ;  and  he  afterwards  was  a 
student  in  the  Kentucky  Academy  in  Woodford  county,  where  he  completed  his 
classical  attainment?.  He  then  studied  law,  and  in  1800  commenced  the  practice 
of  his  profession  at  Paris,  in  Bourbon  County,  where  he  married.  His  widow  and 
a  numerous  family  of  children  survive  him. 

"  Mr.  Justice  Trimble  always  enjoyed  the  highest  consideration  and  confidence  of 
his  fellow-citizens.  In  1802  he  was  elected  to  the  House  of  Representatives  of 
Kentucky  ;  but  in  the  following  year  he  declined  a  re-election,  determining  to 


JOHN  MARSHALL.  423 

the  Court.  Judge  Washington  died  in  1829,  after  a  service  of  thirty 
years,  and  was  succeeded  January  6th,  1830,  by  HENRY  BALDWIN,  of 
Pennsylvania,  and  on  the  death  of  Mr.  Justice  Johnson,  JAMES  M. 
WAYNE,  one  of  the  present  judges  of  the  Court,  was  appointed, 
January  9th,  1835.  Justices  McLean  and  Wayne  are  the  only  pre- 
sent members  of  the  Court  who  were  members  also  in  Marshall's  time, 
the  latter  having  come  to  the  bench  the  last  term  at  which  the  Chief- 
Justice  presided. 

The  decision  in  the  case  of  Gibbons  vs.  Ogdcn,  relative  to  the 
power  vested  in  Congress  to  regulate  commerce  among  the  States, 

devote  himself  to  his  profcssioa — a  duty  enjoined  upon  him  by  his  narrow  for- 
tunes. In  1807,  his  professional  reputation  and  character  were  such  that  he  was 
appointed  a  judge  of  the  Supreme  Court  of  Kentucky  ;  which  situation  he  held 
for  two  years  with  great  reputation.  He  relinquished  the  office  to  resume  the 
practice  of  his  profession ;  and  in  1810  he  refused  the  commission  of  Chief-Justice 
of  the  State.  la  1813  he  again  declined  the  office  of  Chief-Justice  :  and  having 
assiduously  and  successfully  devoted  himself  to  the  bar  until  1817,  he  was  in  that 
year  appointed  district  judge  of  the  United  States,  for  the  district  of  Kentucky. 
In  May,  1826,  he  received,  from  President  Adams,  the  commission  of  Associato- 
Justice  of  the  Supreme  Court  of  the  United  States. 

"  In  tho  performance  of  his  judicial  duties  in  Kentucky,  in  the  state  courts,  and  iu 
the  district  and  circuit  courts  of  the  United  States,  Judge  Trimble  obtained  the 
respect  and  esteem  of  the  profession,  and  of  his  fellow-citizens.  Learned  in  tho 
law,  just  a.nd  discriminating  in  his  judicial  investigations,  his  decisions  were 
characterized  by  great  legal  accuracy,  research,  and  perspicuity  ;  and  by  an  en- 
larged and  liberal  equity.  In  the  Supreme  Court  of  the  United  States,  Mr. 
Justice  Trimble  maintained  and  increased  the  character  and  reputation  which  had 
placed  him  upon  that  bench.  His  opinions  were  clear  and  comprehensive,  illus- 
trated and  enriched  by  all  the  legal  learning  their  subjects  demanded ;  and  they 
gave  to  those  who  heard  them  the  surest  anticipations  of  increasing  usefulness 
and  talents,  had  it  been  permitted  to  him  to  remain  in  the  performance  of  tho 
high  functions  of  his  station. 

"In  private  and  domestic  life  Mr.  Justice  Trimble  was  universally  beloved  and 
respected.  Gentle,  conciliating,  and  kind  ia  his  manners  and  disposition  ;  hon- 
orable and  faithful  in  all  his  transactions ;  every  one  who  knew  him  sought  his 
friendship,  and  was  proud  of  attaining  it.  As  a  husband  ani  a  father,  his  mild 
and  amiable  virtues  endeared  him  to  those  with  whom  ho  was  connected  in  these 
relations ;  and  his  home  was  always  the  abode  of  cheerfulness  and  content  He 
was  a  patriot,  and  a  firm  republican  ;  and  he  was  devotedly  attached  to  the  Union  ; 
always  maintaining  those  constitutional  principles  which  have  been  declared 
from  the  tribunal  of  which  he  had  been  an  efficient  and  much  honored  member." 


424  LIVES    OF    THE    CHIEF-JUSTICES. 

was  followed  by  the  case  of  Brown  vs.  the  State  of  Maryland  in 
1827,*  involving  the  question  of  the  extent  of  the  power  to  regulate 
foreign  commerce.  The  case  was  argued  with  great  ability  and 
learning.  Mr.  Wirt  being  counsel  on  the  one  side^  and  the  present 
Chief-Justice  on  the  other. f  The  judgment  of  the  Court,  pronounced 
by  Chief-Justice  Marshall  again  swept  out  of  existence,  and  expunged 
from  the  statute-book,  the  law  of  a  State  as  being  repugnant  to  the 
paramount  authority  of  the  Federal  Government.  It  was  held  that 
the  act  of  the  Maryland  Legislature,  which  required  every  importer  of 
goods,  by  wholesale,  bale,  or  package,  to  take  out  a  license,  and  pay 
for  it,  under  certain  penalties  or  forfeitures  for  neglect,  was  repugnant 
to  the  Constitution  of  the  United  States,  and  void  ;  inasmuch  as  it 
belonged  to  Congress  to  regulate  foreign  commerce,  and  the  States 
were  prohibited  by  the  Constitution  from  laying  a  duty  on  imports. 

It  was  contended  by  the  counsel  for  the  State  of  Maryland  that 
the  construction  of  the  power  of  Congress  to  the  extent  claimed  by 
the  General  Government  would  abridge  the  acknowledged  power 
of  a  State  to  tax  its  own  citizens,  or  their  property  within  its  ter- 
ritory. This  proposition  was  considered  by  the  Court  and  dis- 
cussed by  the  Chief-Justice  in  his  written  opinion.  He  admitted  the 
power  to  be  sacred,  but  denied  that  it  might  be  used  so  /  as  to  ob- 
struct the  free  course  of  a  power  given  to  Congress.  Congress  was 
vested  by  the  Constitution  with  authority  to  regulate  commerce 
between  the  States.  The  power  is  co-extensive  with  the  subject  011 
which  it  acts,  and  cannot  be  stopped,  as  had  already  been  decided  iu 
Gibbons  vs.  Ogden,  at  the  external  boundary  of  a  State,  but  must 
enter  its  interior.  It  is  a  component  part  of  the  power  to  regulate 
commerce,  not  only  to  authorize  the  importation,  but  to  authorize  the 
importer  to  sell.  The  right  to  sell,  therefore,  is  connected  with  the 
law  permitting  importation,  as  an  inseparable  incident ;  and  any 
penalty  inflicted  on  the  importer  for  selling  the  article,  in  his  character 
of  importer,  must  be  in  opposition  to  the  act  of  Congress  which  autho- 
rizes the  importation,  and  is  therefore  void.  The  principle,  however, 
was  not  carried  so  far  as  to  deny  the  right  of  a  State  legislature  to 
tax  imported  goods  after  they  had  become  mixed  with  and  iucorpo- 

*  12  Wheaton's  Reports,  419. 

t  See  subsequent  sketch  of  Chief-Justice  Taney. 


JOHN  MARSHALL.  425 

rated  into  the  general  mass  of  property  of  the  State.  On  the  con- 
trary, it  was  admitted  that  in  such  case  they  were  liable  to  State 
taxation. 

The  authority  of  Brown  vs.  the  State  of  Maryland,  as  well  as  that 
of  Gibbons  vs.  Ogden,  has  been  thought  to  sustain  the  doctrine,  re- 
peatedly advanced  since  Marshall's  time,  and  discussed  with  great 
ability,  and,  it  may  be  added,  with  no  small  degree  of  warmth,  both 
at  the  bar,  and  in  the  consultation  room  of  the  judges,  that  by  the 
grant  of  power  to  Congress  to  regulate  commerce,  the  States  are  abso- 
lutely prohibited  from  passing  any  laws  on  the  subject  whatever, 
whether  Congress  shall  have  exercised  the  power  or  not,  the  grant  to 
the  General  Government  being  in  its  nature  exclusive.  In  some  of 
these  subsequent  discussions,*  the  opinions  of  Chief-Justice  Marshall  in 
the  two  cases  alluded  to,  have  been  cited  as  sustaining  this  doctrine. 
A  case,  however,  decided  at  the  session  of  the  Court  in  1829,  Wilson 
vs.  Blackbird  Creek  Marsh  Company, f  seems  to  show  that  this  is  not 
correct.  In  that  case  a  chartered  company  was  authorized,  under  a 
State  law,  to  make  a  dam  across  a  navigable  tide-water  creek.  A 
licensed  sloop,  not  being  able  to  pass,  broke  the  dam  ;  and  in  an 
action  by  the  company  for  damages,  the  defendant  insisted  that  the 
creek  was  a  navigable  highway,  over  which  the  power  of  Congress  to 
regulate  commerce,  including  navigation,  extended  ;  and  that  the 
State  law  which  authorized  an  obstruction  to  this  navigation  was, 
therefore,  void.  The  Chief-Justice  in  delivering  the  opinion  of  the 

*  The  subject  has  been  discussed  in  various  cases  since  that  time,  and  among 
others  in  New  York  vs.  Miln,  11  Peters,  102  ;  Prigg  vs.  the  Commonwealth  of 
Pennsylvania,  16  Peters,  539  ;  and  the  Massachusetts,  Rhode  Island,  and  New  Hamp- 
shire license  cases,  5  Howard,  504 ;  all  of  which  are  referred  to  in  the  subsequent 
sketch  of  Chief-Justice  Taney.  In  the  latter  cases  in  particular  the  whole  ques- 
tion was  fully  considered,  and  from  the  opinions  of  the  Chief-Justice,  and  Judges 
Daniel,  Catron,  Woodbury,  and  Nelson,  it  seems  to  be  the  settled  judgment  of  the 
Court,  that  this  power  is  not  exclusive,  but  may  be  exercised  by  the  States, 
especially  in  matters  of  mere  police  regulation,  except  where  it  comes  in  conflict 
with  an  act  of  Congress.  Mr.  Justice  Daniel,  in  his  opinion  in  these  cases,  enters  a 
vigorous  protest  against  the  doctrines  contained  in  the  decision  of  Brown  va. 
Maryland.  The  question  was  also  raised  and  discussed  in  the  New  York  and 
Boston  passenger  cases,  and  in  the  Wheeling  Bridge  case.  See  subsequent  sketch 
of  Chief-Justice  Taney. 

f  2  Peters'  Reports,  245. 


426  LIVES  OF  THE  CHIEF-JUSTICES. 

Court,  says  :  "If  Congress  has  passed  any  act  which  bore  upon  the 
case,  any  act  in  execution  of  the  power  to  regulate  commerce,  the 
object  of  which  was  to  control  State  legislation  over  those  small  navi- 
gable creeks  into  which  the  tide  flows,  and  which  abound  throughout 
the  lower  country  of  the  middle  and  southern  States  ;  we  should  feel 
not  much  difficulty  in  saying  that  a  State  law  coming  in  conflict  with 
euch  act  would  be  void.  But  Congress  has  passed  no  such  act.  The 
repugnancy  of  the  law  of  Delaware  to  the  Constitution  is  placed 
entirely  on  its  repugnancy  to  the  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States  ;  a  power  which  has 
not  been  so  exercised  as  to  affect  the  question. 

"  We  do  not  think  that  the  act  empowering  the  Blackbird  Creek 
Marsh  Company,  to  place  a  dam  across  the  creek,  can,  under  all  the 
circumstances  of  the  case,  be  considered  as  repugnant  to  the  power  to 
regulate  commerce  in  its  dormant  state,  or  as  being  in  conflict  with 
any  law  passed  on  the  subject."  * 

It  will  be  seen  from  the  foregoing  review  that  the  tendency  of  the 
decisions  of  the  Supreme  Court  during  the  entire  period  of  Chief- 
Justice  Marshall's  service  on  the  bench  was  to  sustain  the  authority  of 
the  Federal  Government,  and  to  abridge  the  powers  claimed  to  be 
exercised  by  the  States.  The  Court  boldly  assumed  jurisdiction  to 
declare  an  act  of  Congress  void,  as  being  repugnant  to  the  Constitu- 
tion, yet  this  had  been  actually  exercised  only  in  one  or  two  instances, 
while  the  power  to  declare  the  laws  of  the  States  void  as  against  the 
Constitution  of  the  United  States,  had  been  very  freely  used,  and  par- 
ticularly in  some  of  the  prominent  cases  which  have  already  been 
noticed.f 

A  case  occurred  at  the  session  of  the  Court  in  1830,  in  which  it 
was  attempted  to  carry  the  principles  established  in  some  of  these 
decisions  to  a  very  unwarrantable  extent.  The  case  referred  to  was 
the  Providence  Bank  vs.  Billings  and  Pittman.J  The  Providence 
Bank  had  been  chartered  by  the  Legislature  of  Rhode  Island  in  1791 ; 

*  See  dissenting  opinion  of  Chief-Justice  Taney  in  Wheeling  Bridge  case,  13 
Howard's  Reports,  585,  587. 

t  In  a  note  to  the  case  of  Fletcher  vs.  Peck,  TO!.  2.  Cond.  Rep.,  p.  225,  the 
reporter  enumerates  twenty-sis  State  laws  as  having  been  declared  unconstitu 
tional. 

t  4  Peters'  Reports,  504. 


JOHN  MARSHALL.  427 

and  in  1822  the  Legislature  of  that  State  had  passed  an  act  imposing 
a  duty  "  on  licensed  persons  and  others,  and  bodies  corporate  within  the 
State."  The  Providence  Bank  resisted  the  payment  of  the  tax  on  the 
ground  that  the  act  of  the  Legislature  was  repugnant  to  the  Consti- 
tution of  the  United  States,  inasmuch  as  it  impaired  the  obligation  of 
the  contract  created  by  the  act  of  incorporation.  The  cases  of  Fletcher 
vs.  Peck,  and  of  Dartmouth  College,  it  was  alleged,  had  established 
the  principle  that  a  legislative  grant  to  a  corporation  was  a  contract 
within  the  meaning  of  the  Constitution  ;  and  the  cases  of  McCulloch 
vs.  Maryland,  and  Weston  vs.  the  City  of  Charleston,  had  also  estab- 
lished the  principle  that  the  power  of  imposing  a  tax  upon  tbe  corpora- 
tion involved  the  power  of  destroying  it,  and  was  therefore  contrary 
to  the  provision  of  the  Constitution,  which  prohibited  the  States  from 
passing  laws  impairing  the  obligation  of  contracts. 

The  reasoning  in  the  cases  referred  to  certainly  appears  to  counte- 
nance the  doctrine  advocated  by  the  counsel  for  the  Rhode  Island 
Bank,  and,  taking  these  principles  as  abstract  propositions,  it  would 
seem  difficult  to  draw  the  line  of  distinction.  That  distinction,  how- 
ever, was  drawn  by  the  Court,  and  the  principle  very  strictly  laid 
down  by  the  Chief-Justice  that  the  power  of  taxing  a  bank  incorpo- 
rated by  a  State  legislature  was  not  a  violation  of  the  Constitution  of 
the  United  States.  Such  a  corporation,  it  was  admitted,  was  a  con- 
tract. But  the  act  creating  the  contract  contained  no  stipulation 
exempting  the  bank  from  taxation.  The  power  of  taxation  was  one 
of  vital  importance  ;  it  was  an  incident  of  sovereignty  essential  to  the 
existence  of  government,  and  the  relinquishment  of  such  a  power  was 
never  to  be  assumed.  It  might  be  exercised  in  all  cases  by  a  State, 
except  when  conflicting  with  a  constitutional  law  of  Congress,  tho 
supremacy  of  which  was  always  to  be  recognized  ;  and  such  he  con- 
tends was  the  principle  recognized  in  McCulloch  vs.  Maryland,  and  in 
Weston  vs.  the  City  of  Charleston.  The  sovereignty  of  a  State  ex- 
tends to  everything  which  exists  by  its  own  authority,  or  is  introduced 
by  its  own  permission  ;  but  it  does  not  extend  to  those  means  which  are 
employed  by  Congress  to  carry  into  execution  powers  conferred  on  that 
body  by  the  people  of  the  United  States.  The  law  of  Rhode  Island 
taxing  the  Bank,  was  therefore  held  to  be  constitutional  and  valid. 

At  the  same  term  of  the  Court  another  case  of  very  great  interest 


428  LIVES  OF  THE  CHIEF-JUSTICES. 

arose,  Craig  et  al.  vs.  the  State  of  Missouri,*  involving  the  question  of 
the  validity  of  a  State  law  under  that  clause  of  the  Constitution  which 
declares  that  no  State  shall  "emit  bills  of  credit."  The  State  of 
Missouri  had  passed  an  act  for  the  "  establishment  of  loan  offices,"  by 
the  third  section  of  which  the  officers  of  the  treasury  of  the  State* 
under  the  direction  of  the  Governor,  were  required  to  issue  certificates 
to  the  amount  of  two  hundred  thousand  dollars,  of  denominations  not 
exceeding  ten  dollars,  or  less  than  fifty  cents.  These  certificates  were 
made  receivable  at  the  State  Treasury  of  Missouri  for  taxes,  and  by 
all  officers  of  the  State,  civil  and  military ;  certain  property  of  the 
State  was  pledged  for  their  redemption  ;  a  provision  was  made  for 
gradually  withdrawing  them  from  circulation  ;  and  the  Commissioners 
of  the  loan  offices  -were  authorized  to  make  loans  of  certificates,  to 
citizens  of  the  State,  bearing  interest  at  the  rate  of  six  per  cent,  in 
the  manner  prescribed  by  the  act.  The  main  question  raised  by  this 
law  was,  whether  it  was  a  bona  fide  loan,  which  it  was  admitted  the 
States  have  an  unlimited  power  to  make  ;  or  whether  it  was  an  emis. 
sion  of  "  bills  of  credit,"  a  power  which  the  States  are  prohibited  from 
exercising  by  the  Constitution.  The  Supreme  Court  of  Missouri  had 
decided  that  the  law  was  valid ;  and  now  the  State  was  sum- 
moned to  appear  and  defend  that  law  at  the  bar  of  the  highest  tribu- 
nal of  the  Union. 

The  veteran  statesman,  who  for  so  many  years  occupied  a  seat  in 
the  Senate  of  the  United  States,  and  has  been  recently  transferred  to 
the  more  numerous  branch  of  the  National  Legislature — Thomas  H. 
Benton — represented  the  State  of  Missouri  in  the  Supreme  Court, 
not,  as  he  took  occasion  to  observe  in  his  argument,  as  the  advocate  of 
the  State,  for  her  acts  did  not  require  an  advocate  to  vindicate  them, 
but  as  "  a  corps  of  observation,"  to  watch  what  was  going  on.  In 
the  commencement  of  his  speech,  Mr.  Benton  complained  of  the  formal 
language  of  the  writ,  which  "  summoned"  the  State  to  appear  at  the 
bar  of  the  Court.  "  In  the  language  of  the  writ,"  he  remarks,  "  she 
is  'commanded'  and  'enjoined 'to  appear.  Language  of  this  kind 
does  not  seem  proper,  when  addressed  to  a  sovereign  State  ;  nor  are 
the  terms  fitting,  even  if  the  only  purpose  of  their  process  was  to  obtain 
the  appearance  of  the  State.  They  impute  a  fault  in  the  State  ;  they 
*  4  Peters  Reports,  410. 


JOHN    MARSHALL.  420 

imply  an  omission,  or  neglect  by  the  State.  The  language  of  •  com- 
manding and  enjoining '  would  only  be  well  employed  if  these  had 
occurred." 

"The  State  of  Missouri  has  done  no  act,"  he  continued,  "  which  was 
not  within  the  full  and'  ample  powers  she  possesses  as  a  free,  sovereign, 
and  independent  State.  .She  has  passed  a  law  which  she  considers  in 
the  proper  and  beneficial  exercise  of  her  legislative  functions ;  and 
which  had  for  its  object  the  promotion  of  the  interests  of  her  citizens." 
The  majority  of  the  Court,  however,  thought  otherwise.  In  their 
opinion,  pronounced  by  the  Chief-Justice,  the  certificates  of  Missouri 
were  "  bills  of  credit,"  within  the  meaning  of  the  Constitution,  and  the 
judgment  of  the  Court  again  annihilated  the  legislative  act  of  one  of 
the  States  of  the  Confederacy.  "  In  the  argument,"  remarks  the 
Chief-Justice,  "  we  have  been  reminded  by  one  side  of  the  dignity  of 
a  sovereign  State  ;  of  the  humiliation  of  her  submitting  herself  to 
this  tribunal ;  of  the  dangers  which  may  result  from  inflicting  a  wound 
on  that  dignity.  By  the  other,  of  the  still  superior  dignity  of  the 
people  of  the  United  States,  who  have  spoken  their  will  in  terms 
which  we  cannot  misunderstand.  To  these  admonitions  we  can  only 
answer,  that  if  the  exercise  of  that  jurisdiction  which  has  been  im- 
posed upon  us  by  the  Constitution  and  laws  of  the  United  States 
shall  be  calculated  to  bring  on  those  dangers  which  have  been  indi- 
cated, or  if  it  shall  be  indispensable  to  the  preservation  of  the  Union, 
and,  consequently,  to  the  independence  and  liberty  of  the  States ; 
these  are  considerations  which  address  themselves  to  those  depart- 
ments which  may,  with  perfect  propriety,  be  influenced  by  them.  This 
department  can  listen  only  to  the  mandates  of  law,  and  can  tread  only 
that  path  which  is  marked  out  by  duty."* 

*  The  case  was  decided  by  a  divided  court.  Three  of  the  seven  judges- 
Johnson,  Thompson,  and  McLean— dissented.  The  precise  question  again  arose 
at  the  session  of  1834,  in  the  case  of  Byrne  vs.  the  State  of  Missouri,  8  Peters,  40, 
in  which  the  decision  of  Craig  ts.  the  State  of  Missouri,  was  reviewed  and  con- 
firmed. 

In  the  case  of  Briscoe  vs.  the  Bank  of  the  Commonwealth  of  Kentucky,  11 
Peters,  257,  one  of  the  earliest  constitutional  cases  decided  after  the  appointment 
of  Chief-Justice  Tancy  to  the  bench,  it  was  held  that  the  act  incorporating  the  Bank 
of  Kentucky  was  a  constitutional  exercise  of  power  by  the  State  of  Kentucky, 
and  the  uotes  issued  by  the  bank  were  not  "  bills  of  credit"  within  the  meaning  of 


430  LIVES   OF  THE  CHIEF-JUSTICES. 

The  session  of  the  Court  in  1831  was  rendered  memorable  by  the 
argument  and  decision  of  the  great  Cherokee  controversy,*  one  of  the 
most  novel  and  interesting  that  had  ever  occupied  the  attention  of  the 
Court,  or,  indeed,  it  may  be  said,  of  any  tribunal  in  modern  times.  It 
would  be  impossible  within  the  limits  of  this  sketch  to  trace  the  origin, 
progress,  and  ultimate  issue  of  the  controversy  between  the  State  of 
Georgia  and  the  Cherokee  Indians,  out  of  which  this  singular  judicial 
proceeding  arose,  and  which  fills  an  eventful  page  in  the  political  his- 
tory of  that  period.  Nor  is  this  necessary  in  order  to  accomplish  the 
sole  object  I  have  in  view,  which  is,  to  state  briefly  the  points  at  issue, 
and  the  decision  pronounced  upon  them  by  the  Court. 

From  the  commencement  of  the  Government  the  Cherokee  Indians, 
residing  within  the  territorial  limits  of  Georgia,  had  been  recognized 
as  a  separate  and  independent  people  by  the  Federal  authorities,  and 
a  variety  of  treaties  had  been  negotiated  with  them,  the  substance  of 
which  it  is  not  necessary  to  set  forth.  The  Cherokees  had  made 
considerable  advances  in  civilization,  and  had  recently  adopted  a  Con- 

the  Constitution.  In  the  prevailing  opinion  of  the  Court  the  case  of  Craig  tw. 
Missouri  was  cited,  and  declared  to  contain  no  principle  conflicting  with  the  deci- 
sion in  the  Kentucky  case.  Mr.  Justice  Story  dissented,  holding,  that  the  prin- 
ciple was  the  same  as  in  Craig  vs.  Missouri,  and  that  the  notes  of  the  Kentucky 
Bank  were  "  bills  of  credit "  within  the  decision  in  that  case.  The  cause,  it  seems, 
had  been  once  before  argued,  in  Chief-Justice  Marshall's  time,  and  the  majority 
of  the  Court,  including  the  late  Chief-Justice,  were  of  opinion  that  the  act  of 
Kentucky,  establishing  the  bank,  was  void.  In  his  dissenting  opinion  on  that 
argument,  Judge  Story  earnestly  and  warmly  vindicated  the  opinions  of  Chief- 
Justice.  Marshall,  and  his  own,  on  this  subject.  At  the  close  of  his  elaborate 
argument  he  observes: — :"Mr.  Chief-Justice  Marshall  is  not  here  to  speak  for 
himself;  and  knowing  full  well  the  grounds  of  his  opinion,  in  which  I  con- 
curred, that  this  act  is  unconstitutional,  I  have  felt  an  earnest  desire  to  vindicate 
his  memory  from  the  imputation  of  rashness,  or  want  of  deep  reflection.  Had  he 
been  living  he  would  have  spoken  in  the  joint  names  of  both  of  us." 

The  extent  to  which  Judge  Story  carried  his  views  on  this  subject  is  somewhat 
remarkable.  He  intimates  in  his  Commentaries  on  the  Constitution,  that  indepen- 
dent of  long  continued  practice  from  the  time  of  the  adoption  of  the  Constitution, 
the  States  would  not,  upon  a  sound  construction  of  the  Constitution,  be  autho- 
rized to  incorporate  banks  with  power  to  circulate  bank  paper  as  currency,  iu  as- 
much  as  they  are  expressly  prohibited  from  coining  money  as  well  as  emitting 
bills  of  credit. 

*  The  Cherokee  Nation  vs.  State  of  Georgia.    5  Peters'  Reports,  1. 


JOHN  MARSHALL.  431 

stitution  and  form  of  goyernment.  The  State  of  Georgia  desired  tho 
extinguishment  of  the  Indian  title,  and  the  removal  of  this  people  out 
of  her  territory,  which  the  General  Government,  in  whom  the 
authority  to  do  this  has  been  vested  by  the  Constitution,  had  hitherto 
neglected.  Georgia,  having  waited  in  vain,  as  she  alleged,  nearly 
thirty  years,  for  the  accomplishment  of  this  object,  now  determined  to 
set  about  obtaining  it  in  her  own  way,  and  accordingly  passed  a  series 
of  acts  extending  the  jurisdiction  and  municipal  laws  of  the  State  over 
the  Indian  territory,  and  declaring  all  laws,  ordinances,  and  usages 
heretofore  adopted  by  the  Cherokees  to  be  null  and  void.  Among 
others  was  a  law  prohibiting  any  white  man  from  residing  among  the 
Indians  without  a  special  license  from  the  Governor,  and  taking  an 
oath  to  support  the  Constitution  and  laws  of  the  State.  This  was  the 
law  under  which  the  missionaries  Worcester  and  others  were  convicted, 
whose  case  I  shall  presently  notice.  A  military  guard  was  also  estab- 
lished, and  every  member  of  it  authorized  to  arrest  any  person  charged 
with  violating  any  portion  of  these  laws  ;  and  provision  was  made  for 
a  lottery  by  which  the  Indian  lands  were  to  be  divided  among  the 
people  of  the  State. 

The  object  of  these  laws  was  of  coarse  to  force  the  removal  of  the 
Indians  from  the  State.  The  Cherokees  complained  to  the  General 
Government,  alleging  that  the  laws  were  in  violation  of  their  treaties 
made  with  the  United  States  ;  they  received  the  answer  that  there 
was  no  help  from  that  quarter,  and  that  the  Government  would  not 
interfere.  In  this  emergency  they  took  the  advice  of  counsel,  and 
eagerly  embraced  the  last  hope  that  remained,  by  bringing  their  case 
before  the  Supreme  Court  of  the  United  States.  It  was  thought  that 
the  clause  of  the  Constitution  which  gives  that  tribunal  jurisdiction  in 
controversies  "  between  a  State,  or  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects,"  would  authorize  the  Cherokees  to  sue  as  a,  foreign 
State,  aod,  accordingly,  a  bill  was  filed  in  the  Supreme  Court,  in  the 
name  of  the  Cherokee  nation,  against  the  State  of  Georgia,  praying  for 
an  injunction  to  restrain  the  State  from  the  execution  of  these  laws, 
on  the  ground  of  their  being  null  and  void  as  against  the  treaties  of 
the  United  States.  This  motion  was  brought  on  at  the  present  term, 
and  was  argued  on  behalf  of  the  Cherokees  by  William  Wirt  (with 
whom  the  late  Mr.  John  Sergeant  was  associated),  with  more  than 


432  LIVES  OF  THE  CHIEF-JUSTICES. 

his  usual  earnest  and  lofty  eloquence.  Wirt  had  prepared  the  case 
with  extraordinary  care  and  fullness  ;  and  he  entered  upon  its  discus- 
sion with  intense  ardor  and  enthusiasm.  Indeed,  discriminating  and 
judicious  critics  have  declared  this  to  be  one  of  the  ablest  and  most 
admirable  speeches  ever  delivered  by  that  accomplished  orator  and 
lawyer.  The  spectacle  was  certainly  grand  and  imposing,  and  the 
scene  such  as  must  have  animated  and  inspired,  not  the  speaker  only, 
but  the  entire  audience  that  thronged  the  court-room.  "  The  great 
interest  excited  by  the  controversy,"  says  a  writer  in  the  North  Amer- 
ican Review,  "  was  naturally  to  be  expected  from  the  novelty  of  the 
case,  the  dignity  of  the  parties,  and  the  high  importance  of  the  prin- 
ciples in  question.  The  scene  wore  in  some  degree  the  imposing 
majesty  of  those  ancient  debates,  in  which  the  great  father  of  Roman 
eloquence  sustained  before  the  Senate  the  rights  of  allied  and  de- 
pendent, but  still  sovereign  princes,  who  had  found  themselves  compelled 
to  seek  for  protection  and  redress  from  the  justice  of  the  mighty  Re- 
public. We  may  add  that  the  high  and  well-earned  reputation  of  the 
counsel  retained  by  the  Indians,  added  another  point  of  resemblance 
to  the  parallel."  *  The  parallel  was  just  both  in  respect  to  the  cause, 
the  tribunal,  and  the  advocate.  If,  at  that  moment,  the  Supreme 
*  It  must  have  been  at  the  delivery  of  the  judgment  in  such  a  case  that  Miss 
Martineau  intends  her  graceful  description  of  a  scene  in  the  Supreme  Court  to 
apply.  "  I  have  watched  the  assemblage  when  the  Chief-Justice  was  delivering  a 
judgment,"  she  says  ;  "  the  three  judges  on  either  hand  gazing  at  him  more  like 
learners  than  associates ;  Webster  standing  firm  as  a  rock,  his  large,  deep  set  eyes 
wide  awake,  his  lips  compressed,  and  his  whole  countenance  in  that  intent  still- 
ness, which  easily  fixes  the  eye  of  the  stranger.  Clay  leaning  against  the  desk  in 
an  attitude  whose  grace  contrasts  strangely  with  the  slovenly  make  of  his  dress,  his 
snuff-box  for  the  moment  unopened  in  his  hand,  his  small,  grey  eye,  and  placid  half- 
smile,  conveying  an  expression  of  pleasure,  which  redeems  his  face  from  its  usual 
unaccountable  commonness.  The  Attorney-General,  his  fingers  playing  among 
his  papers,  his  quick,  black  eye,  and  thin,  tremulous  lips  for  once  fixed,  his  small  face, 
pale  with  thought,  contrasting  remarkably  with  the  other  two.  These  men,  absorbed 
in  what  they  are  listening  to,  thinking  neither  of  themselves  nor  of  each  other, 
while  they  are  watched  by  the  groups  of  idlers  and  listeners  around  them ;  the 
newspaper  corps,  the  dark  Cherokee  chiefs,  the  stragglers  from  the  far  West,  the 
gay  ladies  in  their  waving  plumes,  and  the  members  of  either  House  that  have 
stepped  in  to  listen  ;  all  these  I  have  seen  constitute  one  silent  assemblage,  while 
the  mild  voice  of  the  aged  Chief-Justice  sounded  through  the  Court." — Retrospect 
of  WesternTrauel.  Vol.  I.  p.  165. 


JOHN  MAESHALL.  433 

Court  displayed  the  imposing  and  majestic  dignity  of  a  Roman  Senate, 
who  will  deny  that  its  Tully  was  William  Wirt  ? 

The  State  of  Georgia  refused  to  respond,  or  appear,  on  the  argu- 
ment. It  was  currently  reported,  both  at  the  Capitol  and  throughout 
the  country,  that  Georgia  would  refuse  to  abide  by,  or  respect,  an 
adverse  decision.  This  report  was  fully  countenanced  by  the  action 
of  the  State,  which  certainly  conveyed  a  significant  hint  as  to  her 
probable  course.  A  Cherokee  Indian  had  been  arrested,  tried,  con- 
victed, and  sentenced  to  be  hung,  under  the  authority  of  the  State, 
for  the  murder  of  another  Indian.  A  writ  of  error  was  granted  to 
the  Supreme  Court  of  the  United  States  on  this  same  question  of  the 
validity  of  the  Georgia  laws ;  but  the  State  authorities,  without 
noticing  the  pendency  of  the  proceedings,  caused  the  sentence  to  be 
executed  before  the  appeal  could  be  brought  to  argument.  The  dif- 
ficulty as  to  how  the  injunction  was  to  be  enforced  in  case  it  should  be 
awarded,  and  the  State  should  refuse  to  obey,  was  certainly  a  formi- 
dable one ;  but  Wirt's  answer  to  the  objection  was  both  obvious  and 
logical :  "  It  will  be  time  enough,"  he  says,  "  to  meet  that  question 
when  it  shall  arise.  At  present  the  question  is,  whether  the  Court, 
by  its  constitution,  possesses  the  jurisdiction  to  which  we  appeal : 
and  it  is  beginning  at  the  wrong  end  of  the  inquiry  to  ask  how  the 
jurisdiction,  if  possessed,  is  to  be  enforced." 

But  this  question  was  never  reached  by  the  Court.  The  motion  for 
the  injunction  was  denied.  The  opinion  of  the  majority  of  the  judges,* 
pronounced  by  the  Chief-Justice,  though  brief,  was  very  carefully  pre- 
pared, and  disposed  of  the  whole  case  on  the  question  of  jurisdiction. 
The  Constitution  had  conferred  upon  the  Court  jurisdiction  to  deter- 
mine controversies  "  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects."  The  State  of  Georgia  might  un- 
questionably be  sued,  but  was  the  Cherokee  nation  a  foreign  State  within 
the  meaning  of  the  Constitution,  so  as  to  open  to  it  the  doors  of  the 
Federal  tribunals  ?  This  question  he  decides  in  the  negative.  Assent- 
ing to  that  part  of  the  argument  of  counsel  that  the  Cherokees  were 
a  State,  as  a  distinct  political  society,  separated  from  others,  capable 
of  managing  its  own  affairs  and  governing  itself,  he  'regards  the  pecu- 

*  Justices  Thompson  and  Story  dissented ;  the  former  of  whom  wrote  an  able 
dissenting  opinion. 


434:  LIVES  OP  THE  CHIEF^TUSTICES. 

liar  relations  of  the  Indians  with  the  United  States,  and  their  depend- 
ence upon  our  government,  as  entirely  precluding  the  idea  that  they 
are  to  be  regarded  as  a  foreign  State  within  the  purview  of  the  Con- 
stitution. The  Court,  therefore,  had  no  jurisdiction,  and  the  injunc- 
tion was,denied,  without  entering  into  a  consideration  of  the  merits  of 
the  case,  or  an  examination  of  the  validity  of  the  Georgia  laws.* 

At  the  next  session,  a  new,  and  still  more  interesting  phase  of  the 
Cherokee  controversy  was  presented.  It  caine  before  the  Court  in  a 
different  form,  and  brought  up  for  discussion  and  decision  the  whole 
question  as  to  the  validity  of  the  Georgia  laws.f  The  case  is  doubt- 
less yet  fresh  in  the  memory  of  those  whose  recollections  extend  back 
to  that  time,  and  such  will  remember,  too,  the  interest  and  excite- 
ment which  the  discussion  created  throughout  the  country.  I 
have  mentioned  the  law  of  Georgia  which  prohibited,  under  severe 
penalties,  any  white  person  from  residing  among  the  Indians  without 
special  permission  from  the  Governor  of  Georgia,  and  taking  an  oath 
to  obey  the  Constitution  and  laws  of  the  State.  At  the  time  of  the 
passage  of  the  act,  Samuel  A.  Worcester,  a  citizen  of  Vermont,  was  a 
resident  among  the  Cherokees  as  a  missionary,  sent  by  the  American 
Board  of  Foreign  Missions,  and  with  the  license  and  permission  of 
the  President  of  the  United  States.  He  had  no  license,  however, 
from  the  Governor  of  Georgia,  and  had  refused  to  take  the  oath 
required  by  the  act,  deeming  it  incompatible  with  the  duties  of  his 
mission.  Elizur  Butler,  and  five  others,  stood  in  the  same  category. 
These  gentlemen  were  indicted  in  September,  1831,  in  Gwinnett 
County,  Georgia,  convicted,  and  each  sentenced  to  four  years  im- 
prisonment at  hard  labor  in  the  penitentiary.  The  Governor  imme- 
diately tendered  them  a  pardon  on  condition  of  their  conforming  in 
future  with  the  policy  of  the  State.  Five  of  them  accepted  the  par- 
don, but  Worcester  and  Butler  refused,  and  their  cas3s  were  brought 
to  the  United  States  Supreme  Court  on  a  writ  of  error.  Mr.  Wirt 
and  Mr.  Sergeant  were  retained  by  the  Board  of  Missions,  and  argued 
the  cause  for  the  missionaries  ;  the  State  of  Georgia  did  not  appear. 

•  Mr.  Wirt,  it  is  said,  had  great  doubts  upon  the  subject  of  jurisdiction.  Some 
of  the  most  eminent  jurists  of  the  country,  however,  had  given  thsir  views  in 
favor  of  it.  and  among  them  Chancellor  Kent,  whose  opinion  was  read  on  the 
argument 

t  Worcester  vs.  The  State  of  Georgians  Peters'  Reports,  515. 


JOHN  MARSHALL.  435 

A  preliminary  objection  as  to  the  form  of  the  record  having  been 
disposed  of,  and  the  question  of  jurisdiction  settled  in  favor  of  the 
missionaries,  the  Court  proceeded  to  inquire  into  the  main  question 
presented  by  the  case,  namely,  whether  the  law  of  Georgia  was  con- 
sistent with,  or  repugnant  to,  the  Constitution,  laws,  and  treaties  of 
the  United  States.  The  Chief-Justice,  as  was  usually  the  case  in  the 
determination  of  grave  questions  of  constitutional  law,  pronounced 
the  prevailing  opinion  of  the  Court.  It  is  evident  that  he  approached 
the  task  deeply  impressed  with  the  delicacy  as  well  as  the  responsi- 
bility of  the  position.  But  he  did  not  hesitate  or  shrink  from  a  full 
discharge  of  his  duties.  "  The  cause  in  every  point  of  view  in  which 
it  can  be  placed,"  he  remarked,  "  is  of  the  deepest  interest.  The 
defendant  is  a  State,,  a  member  of  the  Union,  which  has  exercised  the 
powers  of  government  over  a  people  who  deny  its  jurisdiction,  and  are 
under  the  protection  of  the  United  States.  The  plaintiff  is  a  citizen 
of  the  State  of  Vermont,  condemned  to  hard  labor  for  four  years  in 
the  penitentiary  of  Georgia,  under  color  of  an  act  which  he  alleges  to 
be  repugnant  to  the  Constitution,  laws,  and  treaties  of  the  United 
States.  The  legislative  power  of  a  State,  the  controling  power  of  the 
Constitution  and  laws  of  the  United  States,  the  rights,  if  they  have 
any,  the  political  existence  of  a  once  numerous  and  powerful  people, 
the  personal  liberty  of  a  citizen,  are  all  involved  in  the  subject  now  to 
be  considered.  It  behoves  this  Court  in  every  case,  more  especially  in 
this,  to  examine  into  its  jurisdiction  with  scrutinizing  eyes,  before  it 
proceeds  to  the  exercise  of  a  power  which  is  controverted."  Having 
examined  this  question,  and  placed  the  jurisdiction  of  the  Court  upon 
the  clearest  basis  of  both  principle  and  authority,  the  Chief-Justice 
next  considers  the  'main  question  presented  by  the  case  as  to  the 
validity  of  the  Georgia  laws  under  which  the  missionaries  were  con- 
victed ;  and  by  a  train  of  that  simple  but  masterly  and  unanswerable 
reasoning  which  characterizes  all  his  juridical  arguments,  arrives  at  the 
conclusion  that  these  laws  are  repugnant  to  the  Constitution,  laws, 
and  treaties  of  the  Union.  Without  following,  or  attempting  to 
analyze,  this  argument,  I  shall  merely  state  his  conclusions  in  his  own 
language  :  "  The  Cherokee  nation,  then,  is  a  distinct  community, 
occupying  its  own  territory,  with  boundaries  accurately  described,  in 
which  the  laws  of  Georgia  can  have  no  force,  and  which  the  citizens 


436  LIVES  OF  THE  CHIEF-JUSTICES. 

of  Georgia  have  no  right  to  enter  but  with  the  assent  of  the  Cherokees 
themselves,  or  in  conformity  with  treaties,  and  with  the  acts  of  Coii- 
gress.  The  whole  intercourse  between  the  United  States  and  this 
nation,*  is,  by  our  Constitution  and  laws,  vested  in  the  United  States. 
The  act  of  the  State  of  Georgia  under  which  the  plaintiff  in  error  was 
prosecuted,  is  consequently  void,  and  the  judgment  a  nullity." 

In  regard  to  the  power  of  the  Court  to  reverse  the  judgment,  and 
the  right  of  the  plaintiff  in  error  to  this  remedy,  he  remarks  :  "  He 
was  seized,  and  forcibly  carried  away,  while  under  guardianship  of 
treaties  guarantying  the  country  in  which  he  resided,  and  taking  it 
under  the  protection  of  the  United  States.  He  was  seized  while  per- 
forming, under  the  sanction  of  the  chief-magistrate  of  the  Union,  those 
duties  which  the  humane  policy  adopted  by  Congress  had  recom- 
mended, He  was  apprehended,  tried,  and  condemned  under  color  of 
a  law  which  has  been  shown  to  be  repugnant  to  the  Constitution, 
laws,  and  treaties  of  the  United  States.  Had  a  judgment,  liable  to 
the  same  objections,  been  rendered  for  property,  none  would  question 
the  jurisdiction  of  this  Court.  It  cannot  be  less  clear  when  the  judg- 
ment affects  personal  liberty,  and  inflicts  disgraceful  punishment,  if 
punishment  could  disgrace  when  inflicted  on  innocence.  The  plaintiff 
in  error  is  not  less  interested  in  the  operation  of  this  unconstitutional 
law,  than  if  it  affected  his  property.  He  is  not  less  entitled  to  the 
protection  of  the  Constitution,  laws,  and  treaties  of  his  country." 

The  judgment  was  annulled,  Mr.  Justice  Baldwin  alone  dissenting  ; 
but  the  formidable  question,  started  by  Mr.  Wirt  in  the  previous  argu- 
ment, now  arose,  not  indeed  in  the  Court,  but  in  the  public  mind,  how 
was  the  decision  to  be  enforced  ?  The  State  of  Georgia  treated  it  as 
a  nullity  ;  the  missionaries  were  still  retained  in  the  penitentiary,  the 
Governor  declaring,  as  is  said,  that  he  would  rather  hang  them  than 
liberate  them  under  the  mandate  of  the  Supreme  Court.  The  General 
Government  gave  but  little  hopes  of  interfering  in  the  controversy, 
and  no  farther  judicial  proceedings  were  instituted.  Nothing  was  left 
for  the  prisoners  but  to  wait  for  a  day  of  cooler  judgment  and  more 
moderate  counsels.  After  some  eighteen  months  this  day  arrived. 

*  In  the  previous  opinion,  it  will  be  recollected,  the  Chief-Justice  laid  down 
the  same  principle— that  the  Cherokees  were  a  separate  State  or  nation ;  though 
he  held  they  were  not  a  foreign  State  within  the  meaning  of  the  Constitutioa. 


JOHN  MARSHALL.  4.37 

The  contest  had  grown  hopeless  to  the  weaker  party.  The  mission- 
aries were  released  ;  and  here  ended  this  extraordinary  chapter  in  the 
history  of  our  free  government.* 

At  the  session  of  the  Court  in  1833,  the  case  of  Barren  r?.  The 
Mayor  and  City  Council  of  Baltimore  f  was  argued,  in  which  Chief- 
Justice  Marshall  delivered  one  of  his  last  constitutional  judg- 
ments.;}; •  The  question  raised  was,  whether  the  provision  of  the 
Constitution  which  inhibits  the  taking  of  private  property  for  public 
use  without  just  compensation,  ought  to  be  construed  so  as  to  restrain 
the  legislative  power  of  a  State,  as  well  as  that  of  the  United  States  ; 
a  question  of  great  importance  indeed,  but,  as  the  Chief-Justice  ob- 
served in  his  opinion,  of  no  very  great  difficulty.  He  answers  this 
question  without  hesitation,  and  with  the  unanimous  concurrence  of 
his  associates,  in  the  negative.  "  The  States,  in  their  several  Consti- 
tutions," he  remarks,  "  have  imposed  such  restrictions  on  their  re- 
spective governments  as  their  own  wisdom  suggested  ;  such  as  they 
deemed  most  proper  for  themselves.  It  is  a  subject  on  which  they 
judge  exclusively,  and  with  which  others  interfere  no  farther  than  they 
are  supposed  to  have  a  common  interest.  The  constitutional  pro- 
vision under  consideration,  was  not  intended  to  secure  the  people  of 
the  several  States  against  the  undue  exercise  of  power  by  their  respect- 
ive State  governments,  but  only  against  that  which  might  be  at- 
tempted by  the  Federal  Government ;  and  the  Court  was,  therefore, 
of  the  opinion  that  the  clause  of  the  Constitution  which  declares  that 
private  property  shall  not  be  taken  for  public  use  without  just  com- 
pensation, is  intended  solely  as  a  limitation  on  the  exercise  of  power 
by  the  Government  of  the  United  States,  and  is  not  applicable  to  the 
legislation  of  the  States." 

The  present  Chief-Justice  of  the  United  States  was  one  of  the 
counsel  engaged  on  the  argument  in  support  of  the  State  law — an  act 
of  the  legislature  of  Maryland — the  validity  of  which  was  established 
by  this  decision. 

*  Kennedy's  Life  of  Wirt.    Vol.  IL  p.  323. 

f  7  Peter's  Reports,  243. 

I  He  wrote  the  brief  opinion  in  Byrne  vs.  The  State  of  Missouri,  referred  to  in 
a  preceding  note  (page  429),  at  the  next  session  of  the  Court ;  but  that  case 
merely  re-affirmed  the  decision  in  Craig  vs.  Missouri,  turning  on  the  same  consti- 
tutional point 


438  LIVES  OP  THE  CHIEF-JUSTICES. 

It  may  very  justly  be  inferred  from  this  decision,  what  indeed  was 
indicated  in  the  case  of  The  Providence  Bank  vs.  Billings,  heretofore 
noticed,*  and  some  others  which  might  be  mentioned,  that,  however 
strictly  the  Chief-Justice  was  disposed  to  limit  the  power  of  State 
legislation  when  that  power  came  in  collision  with  some  law  of, 
or  authority  claimed  to  be  exercised  by,  the  Federal  Government ; 
yet,  in  other  cases  he  was  inclined  to  restrict,  rather  than  to  extend, 
the  jurisdiction  of  the  Court,  and  never  assumed  to  invade  the  pro- 
vince of  State  legislation  in  those  matters  which,  appropriately  per- 
taining to  State  sovereignty,  involve  no  collision  of  jurisdiction  or 
power. 

Thus  we  have  seen  that  he  regarded  the  power  of  taxation  to  be  an 
inherent  attribute  of  sovereignty,  and  sacred  in  all  cases  except  when  it 
came  in  collision  with,  or  might  be  exercised  to  the  destruction  of,  a 
rightful  power  of  the  General  Government,  in  which  case  it  was  void.t 
So,  too,  he  held,  that  even  the  legislative  act  of  a  State  which  divested 
antecedent  vested  rights  of  property,  provided  always  that  it  did  not 
impair  the  obligation  of  contracts,  could  not  be  pronounced  void  by 
the  Supreme  Court  as  against  the  Constitution  of  the  United  States. 
He  had  intimated,  indeed,fin  Fletcher  vs.  Peck,J  that  it  might  well 
be  doubted  whether  the  nature  of  society  and  of  government  does  not 
prescribe  some  limit  to  the  legislative  power ;  but  he  nowhere  inti- 
mates that  the  Constitution  prohibits  the  States  from  passing  laws 
derogatory  to  private  rights  of  property,  a  power  which  certainly  may 
be  regarded  as  the  highest  attribute  of  sovereignty.  This  power  was 
asserted  to  exist  in  an  opinion  delivered  by  one  of  his  brethren,  in 
which  the  Chief-Justice  appears  to  have  concurred.§  The  point  was 
again  raised  in  Watson  vs.  Mercer,  at  the  session  of  1834,  the  very 
last  constitutional  argument  ever  made  before  him.||  In  this  case 
Judge  Story,  pronouncing  the  unanimous  opinion  of  the  Court,  of 
course  including  the  Chief-Justice,  reiterates  the  doctrine  in  these 
broad  and  general  terms :  "  That  the  Court  has  no  right  to  pro- 

*  On  page  426. 

f  Browa  vs.  State  of  Maryland,  Weston  vs.  City  of  Charleston,  Providence 
Bank  vs.  Billings. 
\  Ante,  page  359. 

§  Satterlee  vs.  Matthcwson,  2  Peters'  Reports,  413. 
||  8  Peters'  Reports,  88. 


JOHN  MARSHALL.  439 

nounce  an  act  of  the  legislature  of  a  State  void,  as  contrary  to  the 
Constitution  of  the  United  States,  from  the  mere  fact  that  it  divests 
antecedent  vested  rights  of  property  ;  the  Constitution  docs  not  pro- 
hibit the  States  from  passing  retrospective  laws  generally,  but  only  ex 
post  facto  laws,  and  these  laws  are  held  to  embrace  not  civil  rights, 
but  penal  and  criminal  proceedings  and  matters  only."  * 

Marshall  never  fell  into  the  error  of  his  predecessors,  that  the  Fed- 
eral Courts  have  a  common-law  jurisdiction.  So,  too,  he  never  ques- 
tioned the  exclusive  jurisdiction  of  the  State  tribunals  to  interpret 
their  own  State  statutes,  a  principle  fully  established  by  repeated 
decisions  of  the  Court.  In  one  case  f  before  him,  however,  it  was 
contended  that  the  exclusive  power  of  the  State  Courts  to  construe 
their  own  legislative  acts,  does  not  extend  to  the  paramount  law,  so 
as  to  enable  them  to  give  efficacy  to  an  act  contrary  to  the  State 
Constitution.  Marshall  thus  deals  with  the  objection,  and  vindicates 
the  right  and  authority  of  the  State  tribunals  over  constitutional  ques- 
tions :  "  We  cannot  admit  this  distinction.  The  judicial  department 
of  every  government  is  the  rightful  expositor  of  its  laws  ;  and,  em- 
phatically, of  its  supreme  law.  If,  in  a  case  depending  before  any 
court,  a  legislative  act  shall  conflict  with  the  Constitution,  it  is  ad- 
mitted that  the  Court  must  exercise  its  judgment  on  both,  and  that 
the  Constitution  must  control  the  act.  The  Court  must  determine 
whether  a  repugnancy  does  or  does  not  exist,  and  in  making  its  de- 
termination must  construe  both  instruments.  That  its  construction  of 
one  is  authority,  while  its  construction  of  the  other  is  to  be  disregard- 
ed, is  a  proposition  for  which  the  Court  can  perceive  no  reason." 

I  have  thus  brought  to  a  close  this  brief  review  of  the  judicial  life 
of  Chief-Justice  Marshall — a  review  necessarily  imperfect,  and  which 
I  am  satisfied  cannot  give  an  adequate  idea  of  the  extent,  the  variety, 
the  comprehensiveness,  the  greatness  of  his  labors.  I  have  not  touch- 
ed upon  his  decisions  at  the  Circuit,  nor  have  I  undertaken,  by  citing 
even  here  and  there  an  isolated  case,  to  indicate  the  extent  of  hia 

*  Mr.  Justice  Johnson,  in  his  dissenting  opinion  in  Sattcrlec  vs.  Mhtthcwson, 
considers  this  doctrine  relative  to  the  nature  of  ex  post  facto  laws  to  be  unsound 
and  p;-rnicions. 

f  Bank  of  Hanulton  vs.  Dudley's  lessees.    2  Peters'  Reports,  492. 


440  LIVES  OP  THE  CHIEF-JUSTICES. 

learning  and  the  value  of  his  labors,  in  the  various  branches  of  com- 
mercial and  maratime,  as  well  as  international  law,  the  law  of  copy- 
rights, the  law  of  patents,  and  those  other  subjects  which  are  pecu- 
liarly within  the  cognizance  of  the  Federal  tribunals.  These,  and  a 
variety  of  other  interesting  matters,  connected  with  his  judicial 
services,  are  necessarily  excluded  by  the  limits  marked  out  for  this 
sketch — a  sketch  which  in  no  sense  pretends  to  the  completeness  of  a 
full  biography.  That  biography  will,  doubtless,  be  written,  and  the 
picture  filled  up  by  another  and  more  competent  hand  ; — by  one 
having  access  to  his  private  papers  and  voluminous  correspondence  ; — 
and,  if  done  soon,  by  one  perhaps  who  knew  him  intimately,  and  who, 
from  personal  knowledge  and  intercourse,  can  draw  the  picture  to  the 
life,  in  the  lights  and  shades  of  his  private  as  well  as  his  public  char- 
acter— introducing  us  to  his  fire-side,  his  table,  his  familiar  conversa- 
tion, and  every-day  life,  and  illustrating,  by  personal  anecdote  and 
reminiscence,  his  habits,  his  peculiar  tastes,  his  mode  of  life,  and  even 
his  little  infirmities,  if  any  such  he  may  have  had.  While  this,  how- 
ever, has  not  been  attempted,  I  have  yet  endeavored  to  disclose  fully 
and  accurately  his  judicial  opinions,  upon  most  of  those  great  ques- 
tions of  constitutional  law  which,  in  his  capacity  of  judge,  he  was 
called  upon  to  review.'  In  like  manner  I  shall  here  notice  some  other 
views  entertained  by  the  Chief-Justice  relative  to  our  political  and 
judicial  systems,  which,  though  not  judicially  expressed,  he  did  not 
hesitate  to  avow  without  reserve  or  concealment. 

It  is  well  known  that  Marshall's  opinions  upon  political  questions,  as 
well  as  upon  Constitutional  law,  were  formed  in  the  Federal  school,  and 
continued  without  change  and  unshaken  to  the  day  of  his  death.  A 
writer  in  the  New  York  Review,  who  seems  to  participate  in  these 
views  with  no  little  ardor  of  feeling,  declares,  that  he  "  abhorred  ab 
imo  pectore  all  the  modern,  new  fangled  doctrines,  so  fashionable  in 
Virginia,  upon  the  subject  of  the  Constitution  and  the  principles  of 
the  government ; " — that  is  to  say,  the  doctrines  contained  in  and  le- 
gitimately resulting  from  the  famous  resolutions  of  1798.  Making 
due  allowance  for  the  warmth  of  this  language,  the  expression,  I  ap- 
prehend, is  not  far  wide  of  the  mark.  But,  as  it  has  been  very  pro- 
perly said,  the  admiration  which  one  feels  for  the  intellectual  powers 
displayed  by  the  Chief-Justice,  in  his  expositions  of  the  Constitution, 


JOHN  MARSHALL.  £41 

is  not  to  be  confounded  with  assent,  in  all  cases,  to  the  results  to 
which  he  came.  Many  distinguished  men  have  differed,  and  still  differ 
from  him,  in  his  views  of  Constitutional  law,  and  even  his  learned  as- 
sociates upon  the  bench  have  not  uniformly  gone  along  with  him. 
Thus  the  resolutions  of  1798,  it  is  scarcely  necessary  to  remind  the 
reader,  were  the  work  of  Madison  ;  and  so  far  as  a  mere  name  may 
be  cited  as  authority,  and  aside  from  the  weight  to  be  attached  to  the 
judicial  character,  in  questions  of  constitutional  construction,  Madison 
may  claim  to  stand  at  least  on  an  equality  with  Marshal  ;  for  he  was 
with  the  Constitution  at  its  birth,  he  was  its  cotemporary  expositor, 
and  not  only  a  large  portion  of  its  materials,  but  some  of  its  essential 
framework,  are  the  contributions  of  his  own  hands.  It  would  be  no 
presumption,  therefore,  were  this  the  proper  place  to  enter  upon  the 
discussion,  to  question,  on  original  principles,  the  accuracy  and  soundness 
of  some  of  the  constitutional  constructions  of  the  illustrious  Judge,  so  far, 
at  least,  as  they  may  be  found  to  differ  from  those  of  him,  who  may,  by 
way  of  pre-eminence,  be  called  the  author  of  the  Constitution.  Had 
James  Madison  come  to  the  bench  in  1801,  instead  of  John  Marshall, 
though  the  whole  current  of  decisions  in  questions  involving  the  sove- 
reignty of  the  states  might  have  been  changed,  can  it,  for  a  moment, 
be  imagined,  that  such  change  would  have  impaired  the  stability  of 
our  institutions,  or  the  liberties  of  the  country  ? 

It  is  to  be  observed,  however,  that  the  difference  between  these  two 
truly  great  and  illustrious  minds  in  regard  to  the  rules  of  constitu- 
tional construction,  except  perhaps  in  cases  directly  involving  questions 
of  power  between  the  Federal  and  State  sovereignties,  is  really  less 
than  has  been  generally  supposed.  While  it  must  be  admitted  that 
Marshall  was  not  a  state's  rights  man  (as  the  term  is  usually  under- 
stood), yet  his  decisions,  in  a  class  of  cases  already  referred  to,  show- 
that  he  was,  in  one  sense,  like  Madison,  a  strict  construct icnist ;  that 
no  man  was  less  likely  than  he  to  infer  a  power  in  the  general  govern- 
ment, authorizing  an  invasion  of  the  rights,  and  a  control  of  the  sove- 
reignty of  the  State  tribunals  and  legislatures ;  and  that  he  by  no 
means  shared  those  loose  and  indefinite  notions  which  pervaded  the 
Court,  and  were  entertained  by  prominent  Federal  statesmen  and 
jurists,  in  Jay's  and  Ellsworth's  time. 

In  his  political  sentiments  Marshall  was  warm  and  decided ;  for, 


442  LIVES   OF   THE   CHIEF-JUSTICES. 

though  entirely  withdrawn  from  political  life,  it  is  certainly  true  that 
he  did  entertain  not  oiily  decided,  but  warm  political  feelings.*  That 
these  feelings  may  have  influenced  his  judgment  in  giving  construction 
to  great  questions  of  constitutional  power  is  not  only  probable,  but 
perhaps  natural,  and  unavoidable.  Of  what  avail  could  argument  be 
to  unsettle  a  principle  which  had  occupied  his  closest  attention,  and 
had  been  rooted  in  his  mind  for  years  as  a  fundamental  political  truth, 
sustained,  as  he  viewed  it,  by  the  letter  as  well  as  by  the  spirit  of  the 
Constitution.  The  argument  of  such  a  point  must  have  been  to  him 
but  another  of  those  dull  experiences  upon  the  bench  of  which  Judge 
Story  gives  an  anecdote  in  illustration :  "  That  point  has  been  re- 
peatedly decided  the  other  way,"  remarked  the  Judge  to  an  advocate 
who  was  advancing  some  new  propositions  at  the  end  of  a  long  and 
prosy  discourse.  "Nevertheless,"  answered  the  counsel,  "I  consider 
that  my  duty  to  my  client  requires  me  to  argue  it."  "  Very  well," 
replied  Story,  "  you  can  go  on  and  argue  it,  if  you  think  your  duty 
requires  it.  I  svould  not  restrict  you  in  the  performance  of  your 
duty  ;  but  I  made  up  my  mind  on  the  point  and  decided  it  twenty 
years  ago,  and  have  never  seen  any  reason  to  change  it." 

While  in  Congress  Marshall  voted,  as  has  been  elsewhere  remarked, 
for  the  repeal  of  the  second  section  of  the  sedition  act,  in  opposition 
to  his  political  friends.  It  is  confidently  asserted,  however,  from  his 
own  subsequent  declarations,  that  he  did  not  place  his  vote  upon  the 
grounds  of  any  doubt  as  to  the  constitutionality  of  the  act,  but  merely 
because  he  deemed  the  law  inexpedient  and  unsuited  to  the  temper 
and  feelings  of  the  American  people.f 

He  freely  expressed  to  his  friends  in  private  conversation  his  views 
in  regard  to  the  power  of  Congress  to  construct  roads,  and  upon  the 
subject  of  internal  improvements  generally,  recognizing  fully  the  power 
so  far  as  it  was  the  appropriate  means  of  carrying  out  the  express 
power  given  to  Congress  ;  as  to  construct  military  roads  under  the 

*  la  a  lively  letter  to  Judge  Carr,  Mr.  Wirt,  who  always  entertained  for  tlie  Chief- 
Justice  the  most  profound  respect,  remarks :  "  I  do  not  believe  he  has  an  atom  of 
gall  in  his  whole  composition  on  any  other  subject  than  that  of  politics ;  or  that 
with  him — as  with  many  other  great  men  in  the  Union,  who  will  never  forgive 
the  fall  that  Mr.  Jefferson  gave  them — Jusret  laleri  lethalis  arundo." — 2  Kenne- 
dy^ Life  of  Wirt,  208. 

t  3  New  York  Review,  347. 


JOHN  MARSHALL.  443 

power  to  declare  war  ;  to  appropriate  money  for  improvements  of  a 
national  character  under  the  power  to  regulate  commerce  between  the 
States,  &c.,  &c.* 

He  regarded  the  treaty-making  power  as  extending  to  cases  of 
cession  of  territory  ;  he  would  not  undertake,  says  Judge  Story,  to 
say  that  it  extended  to  all  cases,  yet  he  did  not  doubt  it  must  be  con- 
strued to  extend  to  some.f 

Passing  by  these  debateable  political  questions,  it  would  be  curious 
to  notice  some  of  his  views,  not  judicially  expressed,  upon  subjects  of 
interest  connected  with  the  constitutional  jurisprudence  of  the  country, 
which,  controverted  in  his  day,  have  since  been  adopted  as  the  settled 
opinion  of  the  Court.  I  shall  notice  but  one  or  two  of  these. 

Under  the  Constitution  the  judicial  power  extends  to  controversies 
"  between  citizens  of  different  States."  It  had  been  decided  at  a  very 
early  period  by  one  or  two  cases  in  which  the  Chief-Justice  himself 
pronounced  the  judgment  of  the  Court,  that  a  corporation  aggregate 
was  not  "  a  citizen"  within  the  meaning  of  the  Constitution,  and 
could  not  sue  in  the  Courts  of  the  United  States  as  such.J  This 
opinion,  which  was  adhered  to  by  the  Court  so  late  as  the  session  of 
1840,§  we  are  told  by  Judge  Story,  was  considered  by  the  Chief- 
Justice,  before  his  death,  as  incorrect,  and  as  having  been  given  on 
inadequate  grounds.  ||  It  has  been  subsequently  revised  by  the  Su- 
preme Court,  and  a  different  rule  adopted.^ 

Another  opinion  of  Chief-Justice  Marshall,  which  has  been  con- 
sidered and  adopted  by  the  Supreme  Court  since  his  time  as  correct 
in  principle  in  opposition  to  previous  decisions,  was  in  relation  to  the 
jurisdiction  of  our  Courts  of  Admiralty.  Following  the  course  of  the 
English  decisions,  the  Supreme  Court  had  uniformly  held,  as  the  rule 
was  laid  down  by  Mr.  Justice  Story  in  the  case  of  the  Thr.mis  Jeffer- 
son** that  the  Admiralty  had  no  jurisdiction  except  upon  the  sea,  or 

*  3  New  York  Review,  347. 

f  Letter  of  Judge  Story  to  Edward  Everett.— 2  Story's  Life  and  Letters,  288. 

J  Strawbridge  vs.  Curtis.  3  Craiich  Rep.  2C7.  Bank  of  the  United  States  vs. 
Devereaux.  5  Cranch  Rep.  61. 

§  Bank  of  Vicksburgh  vs.  Slocum.     H  Peters'  Rep.  60. 

||  Letter  to  Chancellor  Kent.    2  Story's  Life  and  Letters,  4G9. 

1f  Louisville  Rail  Road  Co.  vs.  Letson.    2  Howard's  Rep.  497. 

**  10  Wheaton's  Reports,  428.  See  also  Steamboat  Orleans  vs.  Phoebus.  11 
Peters'  Reports,  175. 


444  LIVES  OF  THE  CHIEF-JUSTICES. 

upon  tide  waters  within  the  ebb  and  flow  of  the  tide.  This  principle, 
the  Chief-Justice  believed,  had  been  misapplied,  and  was  too  narrow 
in  its  interpretation  to  be  applicable  to  the  great  rivers  of  America, 
though  perfectly  correct  and  reasonable  in  regard  to  the  jurisdiction 
in  England,  where  the  rivers  are  short,  and  none  of  them  navigable 
from  the  sea  beyond  the  ebb  and  flow  of  the  tide.  He  spoke  of  this, 
it  is  said,  as  one  of  the  most  deliberate  opinions  of  his  life,*  having  no 
doubt,  on  a  correct  application  of  the  principle,  that  the  Admiralty 
jurisdiction  extended  over  the  Mississippi  and  its  branches  as  far  as 
navigable  from  the  sea,  hundreds  of  miles  into  the  interior  ;  and  also, 
though  he  spoke  of  this  with  less  confidence,  over  the  great  inland 
lakes,  which  were  to  be  deemed  inland  navigable  seas.  Nor  did  he 
doubt  the  constitutional  power  of  Congress  to  regulate  this  subject, 
and  confer  this  jurisdiction,  as  being  within  the  power  to  regulate  com- 
merce between  the  States.  These  deliberate  and  well  considered 
opinions  of  the  Chief-Justice,  though  not  recognized  in  his  day,  have 
been  established  in  ours,  in  a  recent  judgment  of  the  Court,  pronounced 
by  the  present  Chief- Justice,f  holding  the  Act  of  Congress  of  1845, 
which  extends  the  Admiralty  jurisdiction  over  the  lakes  and  naviga- 
ble waters  connected  with  the  same,  to  be  constitutional.  In  the 
judgment  of  the  Court,  the  act  rests,  not  upon  the  power  of  Congress 
to  regulate  commerce,  but  upon  the  broad  and  original  principle  main- 
tained by  Marshall,  that  the  Admiralty  jurisdiction  granted  to  the 
Federal  government  by  the  Constitution  is  not  limited  to  tide  waters, 
but  extends  to  all  public  navigable  lakes  and  rivers,  where  commerce 
is  carried  on  with  different  States  or  with  a  foreign  nation.  J 

The  literary  labors  of  Chief-Justice  Marshall,  and  his  connection 
with  the  Virginia  Convention  in  1829,  are  the  only  incidents  of  his 
active  life  that  yet  remain  to  be  noted. 

^    *  3  New  York  Review,  350. 

t  Genesee  Chief  vs.  Fitzhugh.  12  Howard's  Reports,  443.  See  subsequent 
Sketch  of  Chief-Justice  Taney. 

f  Mr.  Justice  Daniel,  who  dissented,  must  have  been  mistaken  in  regard  to  the 
views  of  Marshall  on  this  subject,  when,  in  denying  any  such  extensive  ground  of 
Admiralty  jurisdiction  in  this  country,  or  the  right  of  Congress,  under  the  strict 
provisions  of  the  Constitution,  to  confer  it  on  the  Courts,  he  claims,  if  there  is  any 
error  in  the  view  he  adopts,  that  he  is  sustained  in  the  view  by  "  the  .support  of 
Marshall,  Kent,  and  Story."  See  dissenting  opinion  of  Mr.  Justice  Daniel. 


JOHN  MARSHALL.  445 

The  private  and  original  papers  and  correspondence  of  General 
Washington,  came  by  his  will  into  the  hands  of  his  nephew,  Judge 
Bushrod  Washington.  Between  this  gentleman  and  Marshall,  the 
most  intimate  friendship  existed.  Judge  Washington,  immediately  on 
the  death  of  his  uncle,  selected  the  Chief-Justice  to  write  his  biogra- 
phy. That  work  was  prepared  by  Marshall  as  a  religious  duty,  with 
all  that  profound  admiration  for  tire  character,  and  reverential  affec- 
tion for  the  memory,  of  the  man,  which  he  never  ceased  to  entertain, 
and  yet  with  that  severe  and  almost  stern  impartiality,  and  that  un- 
sparing critical  judgment  which  concede  nothing  to  friendship,  and 
doubt  even  the  genuineness  of  those  memories  which  arise  unbidden 
from  the  warm  affections  of  the  heart.  The  examination  of,  and  selec- 
tions from,  the  mass  of  manuscripts  and  papers  that  were  placed  in  his 
hands  was  a  herculean  task  ;  but  the  Chief-Justice  performed  it  with 
scrupulous  care  and  fidelity.  The  first  three  volumes  of  the  Life  of 
Washington  were  published  in  1804,  the  fourth  in  1805,  and  the  fifth 
and  last  in  1807.  These  volumes  undoubtedly  contain  the  fullest,  the 
most  impartial,  and  the  most  authentic  statement  ever  written  of 
Washington's  military  life,  and  indeed  of  the  entire  war. 

The  author  himself  was  in  the  army,  and  was  under  the  immediate 
command  of  Washington  during  the  most  critical  and  the  most  inter- 
esting period  of  his  military  career  ;  and  it  has  with  truth  been  said 
of  Marshall  that  no  other  maa  could  have  brought  to  this  task  BO 
many  and  such  various  qualifications  for  its  successful  accomplishment. 

The  part  devoted  to  the  political  history  of  the  times,  particularly 
during  the  administration  of  Washington,  is  also  written  with  singular 
candor  and  truthfulness.  Of  the  events  he  narrates  he  could  speak  as 
matters  of  cotemporary  history.  He  could  speak  of  them  as  JSneas 
might  have  spoken  of  Ilium,  when,  his  eye  resting  upon  the  pictured 
representation,  in  the  palace  of  Carthage,  memory  brought  back  to 
him,  in  all  the  vivid  distinctness  of  reality,  those  scenes  of  but  yester- 
day. Like  the  Trojan  chief,  Marshall  had  borne  his  share  in  the 
events,  and  mingled  with  the  men,  of  the  period  he  describes,  and 
could  speak  of  both  with  the  precision  and  confidence  of  personal 
knowledge.  And  it  is  certainly  no  small  praise  to  say,  that  enter- 
taining decided  and  warm  party  predilections,  he  has  spoken  both  of 


446  LIVES   OF  THE  CHIEF-JUSTICES. 

men  and  measures  with  a  moderation,  a  fairness,  and  an  impartiality, 
that  has  left  nothing  even  for  political  opponents  to  criticise.* 

The  merits  of  the  Life  of  Washington,  as  an  accurate  and  impartial 
work  of  history,  are  universally  conceded.  The  style  might  perhaps 
suggest  criticism.  It  is  simple,  plain,  and  unambitious,  and  perhaps, 
as  is  remarked  of  his  judicial  opinions,  a  little  "  hard  and  dry."  Mar- 
shall wrote  to  communicate  facts,  to  instruct,  to  convince,  not  to  de- 
light or  amuse  with  the  graces  of  rhetoric.  One  cannot  help  thinking, 
however,  that  a  little  more  liveliness  and  warmth  of  narrative,  a  little 
fuller  scope  of  illustration,  and  a  freer  play  of  the  fancy,  always  how- 
ever within  the  rigid  and  strictly  circumscribed  bounds  of  historic 
truth,  would  have  rendered  the  life  of  Washington  a  more  readable 
and  popular  biography. 

The  first  of  these  volumes,  it  should  be  mentioned,  contained  a  brief 

*  A  note  relative  to  Mr.  Jefferson's  famous  letter  to  Mazzei,  called  forth  a  com- 
mentary which  forms  an  unfortunate  exception  to  the  above  remark.  Mr.  Jeffer- 
son alleges  that  a  paragraph  had  been  interpolated  in  his  Mazzei  letter  which 
makes  him  charge  his  own  country  with  ingratitude  and  injustice  to  France.  la 
a  letter  written  by  Jefferson  only  the  year  before  his  death,  to  Mr.  Van  Buren,  he 
comments  with  some  severity  upon  Marshall's  reference  to  this  letter,  remarking, 
"And  even  Judge  Marshall  makes  history  descend  from  its  dignity,  and  the 
ermine  from  its  sanctity,  to  exaggerate,  to  record,  and  to  sanction  this  forgery." 
Marshall,  in  his  second  edition  of  the  Life  of  Washington,  in  1832,  in  the  note  to 
the  Mazzei  letter,  replies  to  these  comments  not  without  some  degree  of  warmth 
and  asperity. 

It  is  well  known  that  the  same  reciprocal  esteem,  and  good  understanding 
which  existed  between  Madison  and  Marshall  never  existed  between  the  latter  and 
Jefferson.  It  is  to  be  accounted  for  perhaps  not  altogether  from  political  differ- 
ences, but  also  from  that  clashing  of  opinion  which  arose  between  the  Executive 
and  the  Supreme  Court  during  Jefferson's  administration.  The  extra  judicial 
opinion,  as  Jefferson  called  it,  in  Marbury  vs.  Madison,  was  extremely  distasteful 
to  the  President,  and  so  in  a  much  greater  degree,  were  the  rulings  and  decisions 
of  Marshall  in  Burr's  trial.  This  is  very  evident  from  Jefferson's  letters  during 
the  trial  to  Mr.  Hay,  which  are  found  in  his  published  correspondence.  The  ene- 
mies of  Mr.  Jefferson  have  fastened  upon  him  with  fierce  and  almost  vindictive 
animosity,  the  charge  of  having  attacked  the  Chief-Justice  from  feelings  of  per- 
sonal as  well  as  political  hostility.  I  do  not  intend  to  discuss  the  merits  of  the 
controversy  on  either  side,  but  merely  remark,  that  so  far  as  the  published  corres- 
pondence of  Mr.  Jefferson  can  be  taken  as  a  guide.  I  believe  this  charge  to  be 
greatly  exaggerated  if  not  entirely  destitute  of  foundation. 


JOHN    MARSHALL.  447 

history  of  the  American  colonies  up  to  the  period  of  the  Revolution. 
This  historical  review,  after  being  very  fully  and  carefully  revised  by 
the  author,  was  detached  from  the  original  work,  and  republished  in 
1824  as  a  "  History  of  the  Colonies."  la  1832  he  republished  the  Life 
of  Washington,  in  two  closely  printed  volumes,  carefully  revised  and 
condensed — the  language  being,  as  he  remarks  in  his  preface,  "in 
some  instances  altered — he  trusts,  improved  ;  and  the  narrative,  espe- 
cially that  part  of  it  which  details  the  distresses  of  the  army  during 
the  war,  relieved  from  tedious  repetition  of  the  same  suffering." 

Chief-Justice  Marshall,  at  the  age  of  seventy-four  years,  was  elected 
a  member  of  the  Convention  which  assembled  early  in  1829,  to  revise 
the  Constitution  of  his  native  State.  It  has  been  well  remarked,  that 
a  spectacle  of  greater  dignity  than  this  Convention,  has  rarely  been 
exhibited.  It  was  composed  of  the  most  eminent  citizens  of  Virginia 
— some  of  them  indeed  the  most  eminent  and  illustrious  of  living 
American  statesmen — the  record  of  whose  public  services  reached  back 
to  a  period  before  the  foundation  of  the  government,  and  whose  histo- 
ries were  interwoven  with  the  history  of  the  republic.  Such  were  the 
two  venerable  ex-Presidents  of  the  United  States,  James  Madison  and 
James  Monroe.  These,  with  Marshall,  might  well  be  called  the  Ncstors 
of  the  Convention  ;  for  each  of  them,  like  the  Pylian  sage,  amid  the 
Grecian  chiefs  before  the  walls  of  Troy,  had  survived  two  generations 
of  men,  and  was  standing  now  among  a  third,  to  enlighten  and  instruct 
by  the  wisdom  of  years  and  experience.  Among  their  associates  were 
the  late  President  Tyler,  the  late  Associate-Justice  of  the  Supreme 
Court,  Philip  P.  Barbour,  Henry  B.  Giles,  Littleton  W.  Tazcwell,  Abel 
P.  Upshur,  besides  many  other  gentlemen,  who  have  subsequently  dis- 
tinguished themselves  and  earned  an  honorable  fame  in  the  service  of 
their  State  and  country. 

It  had  been  intended  to  calk  Mr.  Madrson  to  preside  over  the  Con- 
vention, but  his  advanced  age  and  physical  infirmities  induced  him  to 
decline.  Mr.  Monroe  was  then  unanimously  selected,  and  was  con- 
ducted to  the  chair  by  Madison  and  Marshall.  I  cannot  undertake 
here  to  follow  the  course  of  the  proceedings  of  the  Convention,  or  to 
allude  even  to  the  prominent  subjects  of  its  discussions.  The  debates 
were  at  times  very  animated,  and  always  exceedingly  able.  A  full 
report  of  them  has  been  published,  comprising  a  volume  of  nine  hun- 


448  LIVES  OF  THE  CHIEF-JUSTICES. 

dred  closely  printed  pages.  The  Chief-Justice,  though  not  a  frequent, 
much  less  a  tedious,  speaker,  occasionally  mingled  in  these  debates, 
and  spoke  with  a  directness  and  an  earnest  sincerity  which  commanded 
the  respect,  if  it  did  not  carry  conviction  to  the  understandings  of  his 
hearers.  It  is  said  that  one  of  the  most  beautiful  features  of  the  scene 
was  the  reverence  manifested  for  Chief-Justice  Marshall.  The  gentle- 
ness of  his  temper,  the  purity  of  his  motives,  the  sincerity  of  his  con- 
victions, and  his  wisdom,  were  confessed  by  all.*  Though  members 
might  differ  from  him  in  judgment,  no  harshness  or  asperity  of  lan- 
guage was  suffered  to  mingle  with  the  reply  which  his  arguments 
elicited.  He  spoke  upon  the  two  great  questions  which  divided  the 
Convention,  namely,  the  basis  of  representation,  and  the  tenure  of  the 
judicial  office,  and  with  especial  earnestness  and  feeling  upon  the 
latter.  In  this  debate  the  judicial  act  passed  by  Congress  in  1802, 
restoring  the  former  circuit  system,  and  thereby  abolishing  the 
offices  of  certain  judges,  was  touched  upon.  The  views  expressed 
by  the  Chief-Justice  on  this  subject  were  not  concurred  in  by  some  of 
the  prominent  gentlemen  in  the  Convention.  His  remarks  were  replied 
to  by  Mr.  Tazewell  and  Mr.  Giles,  but  by  both  with  the  utmost  cour- 
tesy and  respect,  especially  the  latter,  who,  forgetting  past  differences 
of  opinion,  expressed  the  highest  personal  regard  for  his  venerable 
associate. 

The  projected  Constitution  contained  a  provision  that  Judges  of  the 
Superior  Courts  should  hold  their  offices  during  good  behavior.  The 
Chief-Justice  proposed  to  add  a  clause  guarding  against  such  a  con- 
struction as  that  of  the  act  of  Congress  referred  to,  which  by  repeal- 
ing the  law  establishing  the  Court,  dissolved  the  tenure  of  the  Judge's 
office,  and  discharged  him  upon  the  world.  In  the  view  of  Marshall, 
this  was  incompatible  with  the  absolute  independence  of  the  Ju- 
diciary. He  spoke  upon  this  question  with  earnestness  and  emphasis 
— almost,  says  one,  with  the  authority  of  an  apostle.  "  The  argu- 
ment of  the  gentleman,"  he  said,  "  goes  to  prove  not  only  that  there 
is  no  such  thing  as  judicial  independence,  but  that  there  ought  to  be 
no  such  thing  ; — that  it  is  unwise  and  improvident  to  make  the  tenure 
of  the  Judge's  office  to  continue  during  good  behavior.  I  have  grown 
old  in  the  opinion,  that  there  is  nothing  more  dear  to  Virginia,  or 
*  Mr.  Binney's  Eulogy. 


JOILN   MARSHALL.  449 

ought  to  be  more  dear  to  her  statesmen,  and  that  the  best  interests  of 
our  country  are  secured  by  it.  Advert,  sir,  to  the  duties  of  a  Judge. 
He  has  to  pass  between  the  government,  and  the  man  whom  that 
government  is  prosecuting, — between  the  most  powerful  individual  hi 
the  community,  and  the  poorest  and  most  unpopular.  It  is  of  the  last 
importance  that,  in  the  performance  of  these  duties,  he  should  observe 
the  utmost  fairness.  Need  I  press  the  necessity  of  this  ?  Does  not 
every  man  feel  that  his  own  personal  security,  and  the  security  of  his 
property  depend  upon  that  fairness  ?  The  judicial  department  comes 
home  in  its  effects  to  every  man's  fireside  ;  it  passes  on  his  property, 
his  reputation,  his  life,  his  all.  Is  it  not  to  the  last  degree  important, 
that  he  should  be  rendered  perfectly  and  completely  independent,  with 
nothing  to  control  him  but  God  and  his  conscience  ?" 

******** 

"  I  have  always  thought,  from  my  earliest  youth  till  now,  that  the 
greatest  scourge  an  angry  Heaven  ever  inflicted  upon  an  ungrateful 
and  a  sinning  people,  was  an  ignorant,  a  corrupt,  or  a  dependent 
Judiciary." 

An  incident  occurred  in  one  of  the  discussions  in  the  Convention, 
that  is  worthy  of  being  noticed.  Among  the  provisions  of  the  pro- 
posed Constitution  relative  to  the  legislature,  was  one  restraining  the 
Senate  from  altering  a  money  bill  originating  in  the  other  house.  The 
Chief-Justice  moved  to  strike  out  the  clause,  and  proceeded  to  < 
his  views  upon  the  subject,  remarking,  among  other  things,  that  the 
idea  was  derived  from  England,  where  the  upper  house  were  heredi- 
tary legislators  ;  and  however  well  adapted  to  their  institutions  and 
frame  of  government,  it  was  not  suitable  to  ours.  During  his  remarks 
much  disorder  and  confusion  prevailed  in  the  house,  and  his  voice  was 
scarcely  audible  above  the  tumult.  A  member  sprang  to  his  foot,  and 
addressing  the  chair,  exclaimed  :  "  Wisdom  crieth  aloud  in  th> 
and  her  voice  is  not  heard  ! "  The  chairman  at  once  called  the  house 
to  order,  and  comparative  quiet  was  immediately  restored.  M 
continued  and  concluded  his  remarks.  The  qiiL.-tii.ii  was  thru  takiti 
on  the  amendment,  and  carried  by  a  very  large  majority. 

The  venerable  Chief-Justice  presided,  for  the  last  time,  in  t! 
preme  Court,  at  the  session  of  1835.     lie  had  now  cut. 're. 1  upon  his 
eightieth  year,  and  was  still  in  the  enjoyment  of  tuk-rabh-  health,  .md 
29 


450  LIVES    OF    THE   CHIEF-JUSTICES. 

in  the  full  possession  of  his  mental  faculties.  There  were  some  cases 
pending  at  this  term,  involving  important  questions  of  constitutional, 
law,  and  among  others  that  of  Briscoe  vs.  The  Commonwealth  Bank 
of  Kentucky,  and  Miln  vs.  The  City  of  New  York.  The  Court,  how- 
ever, was  not  full  ;  for  though  Mr.  Justice  Wayne  had  taken  his  seat 
early  in  the  term,  in  place  of  Judge  Johnson,  deceased,  yet  another 
vacancy  had  been  created  by  the  resignation  of  Mr.  Justice  Duval. 
In  reply  to  the  inquiry  of  counsel,  whether  cases  involving  constitu- 
tional questions  would  be  taken  up  the  present  term,  the  Chief-Justice 
said:  "The  Court  cannot  know  whether  there  will  be  a 'full  Court 
during  the  term  ;  but  as  it  is  now  composed,  the  Constitutional  cases 
will  not  be  taken  up." 

The  cases  accordingly  passed  over  ;  they  passed  into  the  hands  of 
his  successor  on  the  bench.  For  Marshall  there  was  never  again  "  a 
full  court;"  he  had  heard  his  last  argument,  and  pronounced  his  last  Con- 
stitutional judgment.  His  work  was  done  ;  the  opening  of  the  next  ses- 
sion brought  with  it  the  eulogy  for  the  departed,  in  the  eloquent  words 
of  Clay  ;  and  the  affectionate  and  affecting  response  of  Story,  who,  as 
senior  Judge,  occupied  the  seat  of  the  deceased  :  "  This  hall  will  never' 
again  be  honored  by  his  presence.  But  so  long  as  it  shall  remain  de- 
voted to  the  administration  of  public  justice,  so  long  will  it  preserve 
the  best  records  of  his  fame.  He  who  in  future  ages  shall  here  seek 
for  his  monument,  need  but  look  around  him  and  before  him.  The 
voices  of  the  eloquent  and  the  learned,  which  will  here  pronounce  his 
name,  will  never  fail  to  breathe  forth,  at  the  same  time,  his  most  affect- 
ing praise." 

During  this  last  session  of  the  Court,  the  venerable  Chief-Justice 
presided  with  all  his  accustomed  dignified  composure,  and  simple  and 
artless  grace  of  manner.  It  was  a  striking  and  touching  spectacle  to 
see  the  tall,  majestic  old  man,  in  his  robe  of  office,  move  with  firm  step 
to  his  usual  seat  among  his  brethren.  To  those  especially  whose 
eyes  had  been  accustomed  to  follow  him  for  years,  and  whose  early 
admiration  for  the  man  had  ripened  into  reverence,  the  scene  was  well 
calculated  to  awaken  the  most  interesting  reminiscences.  He  stood 
among  them  a  relict  of  the  past ;  the  last  link  which  connected  the 
government  of  that  day,  with  the  first  years  of  the  republic.  He  had 
outlived  all  his  former  associates.  Of  the  judges  who  sat  with  him, 


t  JOHN  MARSHALL. 

daring  the  first  ten  years  of  his  service,  not  one  remained. 
Story,  the  eldest  then  in  commission,  had  comeHo  the  bench  a  young 
man,  at  a  period  when  Marshall  might  already  have  been  called  a  vete- 
ran, and  when  his  fame  as  a  jurist  was  well  nigh  at  its  zenith.  The 
great  lawyers  who  frequented  the  Court,  and  were  engaged  in  argu- 
ment before  him  in  former  years,  had,  nearly  all  of  them,  disappeared. 
Webster,  it  is  true,  remained,  then  as  ever,  the  leading  counsel  in  the 
most  important  causes,  and  at  times  the  voice  of  Clay  was  heard  at 
the  bar  of  the  Court ;  but  Wirt  had  passed  away,  and  Pinkney,  and 
Dallas,  and  Martin,  and  Dexter,  and  Ernmett,  and  Wells.  Yet  the 
venerable  form  of  the  Chief-Justice,  as  he  stood  thus  alone  among  his 
brethren  of  the  bar  and  the  bench — alone  among  a  new  generation  of 
men,  excited  no  painful  emotion  or  compassionate  feeling.  Men  felt 
in  his  presence  nothing  but  a  serene,  a  cheerful,  almost  a  lively  satis- 
faction. There  were  no  regrets  for  the  past,  nothing  to  wish  for  the 
present,  and  nothing  to  fear  for  the  future,  for  the  measure  of  his 
fame  was  full,  and  with  the  clear  light  of  his  intellect  still  shining  un- 
dimmed — still  glittering  bright  and  steady  over  the  snows  of  fourscore 
winters — it  was  not  likely  that  that  fame  could  now  be  impaired.  It 
is  stated  that  Marshall  in  the  latter  years  of  his  life  feared  that  he 
might  not  retain  the  full  use  of  his  faculties  in  his  old  age,  and  had 
for  some  time  contemplated  a  retirement  from  the  bench.  He  had 
mentioned  the  subject  to  confidential  friends,  and  charged  them  not  to 
let  him  remain  on  the  bench  a  day  after  they  suspected  his  mind  was 
on  the  wane.  It  is  also  stated  that  these  friends,  from  a  deep  reve- 
rence and  affection  for  the  Chief-Justice,  had  determined  to  act  upon 
the  suggestion  if  the  time  should  ever  arrive  in  which  it  was  proper  to 
be  done.*  That  time  fortunately  never  came.  .  The  record  of  the 
last  session  of  the  Supreme  Court,  at  which  he  presided,  and  the  re- 
ports of  the  opinions  he  delivered  in  s^pe  of  the  cases  then  argued, 
attest  that  his  faculties  remained  in  their  full  power  to  the  last.  His 
setting  sun,  says  the  authority  I  have  quoted,  was  seen  in  its  clear,  un- 
clouded splendor,  beaming  as  it  descended  with  a  larger  orb  and  more 
softened  light,  until  the  very  moment  when  it  sunk  In-nt-atli  the  hori- 
zon, with  a  beautiful  and  tranquillizing  transparency. 

The  health  of  the  Chief-Justice  began  visibly  to  fail  toward  the 
*  3  New  York  Review,  340. 


452  LIVES  OF   THE  CHIEF-JUSTICES.  % 

close  of  tbe^erm.  Early  in  March,  Judge  Story  writes  :  "  He  still 
possesses  his  intellectual  powers  in  very  high  vigor,  but  his  physical 
health  is  manifestly  on  the  decline."  And  yet,  notwithstanding  bodily 
weakness,  and  almost  unremitting  pain,  he  continued  to  bear  up  with 
an  uncomplaining  spirit  ;  and  though  the  loss  of  his  wife  visibly  and 
deeply  affected  him,  he  maintained  to  outward  view  at  least,  his  habit- 
ual calmness  and  serenity  of  temper.*  . 

At  the  close  of  this  session  of  the  Court  he  returned  to  his  resi- 
dence in  Richmond.  Here  he  was  seized  with  a  serious  and  alarming 
illness.  Early  in  June,  however,  he  got  better,  and  continued  to  im- 
prove, so  much  so  as  to  receive  the  visits  of  his  friends,  and  indeed  to 
inspire  temporary  hopes  of  his  recovery.  Among  those  who  had  an 
interview  with  him  at  this  period  was  Chancellor  Kent,  then  on  a  visit 
to  Virginia.f  It  was  soon  apparent,  however,  that  this  favorable 
prospect  was  delusive.  His  constitution  had  become  shattered,  so  that 
but  little  hopes  were  now  entertained  of  anything  but  mere  temporary 
relief.  On  the  advice  of  his  friends  he  consented  to  be  taken  to  Phi- 
ladelphia, in  the  hopes  of  obtaining,  as  upon  a  former  occasion,  some 
aid  from  the  distinguished  medical  skill  of  that  city.  He  was  accom- 
panied by  three  of  his  sons ;  and  during  the  brief  remnant  of  his 

*  Two  or  three  years  previous  to  this  period,  Judge  Story,  in  a  letter  to  his 
wife,  alludes  to  the  effect  on  the  mind  of  Marshall  of  his  recent  affliction :  "  On 
going  into  the  Chief-Justice's  room  this  morn/ng,  I  found  him  in  tears.  He  had 
just  finished  writing  out  for  me  some  lines  of  General  Burgoyne,  of  which  he 
spoke  to  me  last  evening  as  eminently  beautiful  and  affecting.  I  asked  him  to 
change  the  purpose  and  address  them  to  you,  which  he  instantly  did,  and  you 
will  find  them  accompanying  this.  I  saw  at  once  he  had  been  shedding  tears 
over  the  memory  of  his  own  wife  ;  and  he  has  said  to  me  several  tunes  during  the 
term,  that  th.3  moment  he  relaxes  from  business  he  feels  exceedingly  depressed, 
and  rarely  goes  through  a  night  without  weeping  over  his  departed  wife.  She 
must  have  been  a  very  extraordinary  woman  so  to  have  attached  him ;  and  I 
think  he  is  the  most  extraordins^-  man  I  ever  saw  for  the  depth  and  tenderness 
of  his  feelings." 

f  I  cannot  vouch  for  the  accuracy  of  the  following  anecdote  of  the  Chancellor's 
interview  with  Chief-Justice  Marshall,  chronicled  in  the  Richmond  papers  of  the 
day.  Kent,  it  is  said,  introduced  himself,  and  observing  that  he  had  heard  of  the 
Chief-Justice's  indisposition,  added,  that  not  knowing  whether  he  should  see  him 
in  the  next  world,  he  was  resolved  to  have  that  pleasure  in  this.- 

The  Chancellor,  while  in  Richmond,  visited  the  "  Quoite  Club,"  where  his  pre- 
sence attracted  very  marked  attention. 


JOHN  MARSHALL.  453 

days  passed  in  that  city,  was  attended  by  them,  and  by  many  valued 
friends,  among  whom  was  his  brother  on  the  bench,  Mr.  Justice 
Baldwin,  who,  like  all  his  associates,  entertained  for  the  Chief-Justice 
a  respect  and  affection  amounting  almost  to  reverence.  The  death  of 
his  eldest  son  *  who  was  killed  at  Baltimore  by  an  unfortunate  acci- 
dent, a  few  days  before  his  father's  decease,  was  concealed  from  the 
Chief-Justice,  and  everything  that  considerate  affection  and  kindness 
could  prompt,  was  done  to  smoothe  his  passage  to  the  tomb.  He  was 
conscious  of  his  approaching  end,  and  with  his  faculties  unimpaired  to 
the  last,  expired  on  Monday,  the  6th  July,  1835,  having  nearly  com- 
pleted his  eightieth  year. 

The  body  of  the  Chief-Justice  was  brought  to  Richmond,  accompa- 
nied by  General  Scott,  Judge  Baldwin,  and  a  deputation  of  the  bar  of 
Philadelphia,  who  on  their  arrival  at  Richmond  were  received  as  the 
guests  of  the  city.  The  ceremonies  of  the  funeral  were  solemn  and 
impressive.  "  The  city  bells,"  says  the  Richmond  Enquirer,  "  tolled  yes- 
terday nearly  the  whole  day — guns  were  fired — and,  perhaps,  no  funeral 
procession,  in  this  city,  has  ever  been  more  extensive  and  solemn  than 
the  one  which  yesterday  attended  him  to  the  grave." 

The  funeral  services  were  performed  by  Bishop  Moore,  according  to 
the  ritual  of  the  Episcopal  Church,  of  which  the  deceased  was  a 
member.f  On  its  entrance  into  the  city  the  corpse  was  met  at  the 
Union  Hotel  by  an  imposing  procession  of  the  civil  authorities,  mili- 
tary, clergy,  masonic  brethren,  and  citizens,  and  was  taken  to  his  own 

*  Mr.  Thomas  Marshall,  a  gentleman  of  fine  talents  and  attainments,  and  at  the 
time  of  his  death  a  member  elect  of  the  Virginia  House  of  Delegates.  He  was 
on  his  way  to  visit  his  father  at  Philadelphia.  While  walking  near  the  Court- 
house in  Baltimore,  a  violent  thunderstorm  arose,  and  Mr.  Marshall  with  a  friend 
sought  shelter  from  the  rain  in  the  hall  of  the  Court-house.  A  chimney  of  the 
building,  struck  with  lightning,  as  it  was  thought,  fell  upon  the  stairs  of  the 
Court-house,  and  a  portion  of  it  in  that  part  of  tfcc  hall  \vln-iv  .Mr.  Mar.-hall  stood, 
striking  him  and  wounding  him  so  severely  that  he  died  early  the  next  morning. 

t  "Among  Christian  sects,"  says  Judge  Story,  "be  personally  attached  him- 
self to  the  Episcopal  church.  It  was  the  religion  of  his  early  education  ;  and 
became  afterwards  that  of  his  choice.  But  he  was  without  tin-  slightest  touch  of 
bigotry  or  intolerance.  His  benevolence  was  as  wide  as  Christianity  ituJf.  It 
embraced  the  human  race.  He  was  not  only  liberal  in  his  ffclings  and  prir. 
but  in  his  charities.  His  hands  were  open  upon  all  occasions  to  succor  distress, 
to  encourage  enterprise,  and  to  support  good  institutions." 


454:  LIVES  OF  THE  CHIEF-JUSTICES. 

house,  according  to  his  request.     Thence  it  was  carried  to  the  new- 
burying  ground,  where  it  rests  near  the  ashes  of  his  wife.* 

The  death  of  Marshall  excited  a  deep  sensibility  in  the  public  mind 
throughout  the  country,  and  every  possible  mark  of  respect  was  shown 
to  his  memory,  particularly  by  the  members  of  the  bar  and  in  the  various 
courts  of  justice.  The  most  eminent  of  his  professional  brethren  were 
selected  and  consented  to  deliver  eulogies  upon  his  services  and  charac- 
ter— Story,  Kent,  Webster,  Binney,  Sargeant.  A  collection  of  the 
proceedings  of  the  different  Courts,  their  resolutions,  the  addresses  of. 
the  bar,  the  responses  from  the  bench,  would  fill  a  volume.  From 
all  these  I  select  one  passage  only — a  single  sentiment — the  resolutions 
adopted  by  the  Charleston  bar.  It  is  a  sentiment  so  singularly  just 
and  beautiful,  so  modest,  so  truthful,  and  yet  so  profoundly  sugges- 
tive, that  it  deserves  to  be  engraved  on  the  marble  bust  of  the  Chief- 
Justice,  which  stands  on  its  pedestal  in  the  hall  of  that  tribunal  in 
which  he  so  long  presided  : — "  Though  his  authority  as  Chief-Justice 
of  the  United  States,"  says  the  Charleston  resolution,  "  was  protracted 
far  beyond  the  ordinary  term  of  public  life,  no  man  dared  to  covet  his 
place,  or  express  a  wish  to  see  it  filled  by  another.  Even  the  spirit 
of  party  respected  the  unsullied  purity  of  the  Judge,  and  the  fame  of 
the  Chief-Justice  has  justified  the  wisdom  of  the  Constitution,  AND  RE- 
CONCILED THE  JEALOUSY  OF  FREEDOM  TO  THE  INDEPENDENCE  OF  THE  JUDI- 
CIARY." 

It  might  be  expected  that  having  thus  followed  the  Chief-Justice  to 
the  close  of  his  career,  and  sketched,  with  perhaps  a  too  free  pen,  his 
judicial  services,  his  opinions,  and  his  public  character,  I  should  speak 
of  his  domestic  and  social  virtues,  and  of  that  happy  combination  of 
faculties  which  threw  a  charm  around  his  fireside,  and  over  his  inter- 
course in  private  life.     This  would  be  proper,   doubtless,   but   can 
scarcely  be  necessary.     I  might,  indeed,  speak  of  that  rare  combination 
of  virtue  and  wisdom  which  his  private  as  well  as  his  public  life  manifested 
— of  that  wise  and  considerate  propriety  of  conduct — that  natural  dignity 
of  deportment — that  love  of  truth  and  deep  sense  of  moral  and  religious 
obligation — that  unaffected  modesty — that  simplicity  of  character,  man. 
•  ners,  dress,  and  deportment — that  deep  sensibility  and  tenderness — that 
ardent  love  of  home  and  attachment  to  the  pleasures  of  the  domestic 
*  Richmond  Enquirer,  July  10,  1835. 


JOHN  MARSHALL.  455 

circle — that  respect,  courtesy,  and  kindness,  which  he  always  mani- 
fested for  the  female  sex — that  absence  of  all  selfish  feeling that 

benevolence,  and  that  kindly  charity,  which  was  not  only  a  principle 
and  rule  of  his  life,  but  an  innate  sentiment  of  his  heart.  All  these 
might  be  spoken  of  in  terms  of  unqualified  respect  and  admiration  ; 
but  the  task  has  been  already  done  by  the  hand  of  another,  his  inti- 
mate companion  and  friend,  for  twenty-four  years,  and  in  a  manner 
which  none  may  hope  to  equal  or  even  to  imitate.* 

In  bringing  this  sketch  to  a  close,  however,  I  cannot  refrain  from 
introducing  the  following  tribute  to  his  domestic  virtues,  from  the  pen 
of  a  venerable  kinsman,  as  preserved  by  one  of  his  eulogistsf — a  tribute 
as  full  of  affectionate  tenderness,  as  it  is  of  a  touching  simplicity,  and 
genuine  truthfulness  : 

"  He  had  no  frays  in  boyhood.  He  had  no  quarrels  or  outbreak- 
ings  in  manhood.  He  was  the  composer  of  strifes.  He  spoke  ill  of 
no  man.  He  meddled  not  with  their  affairs.  He  viewed  their  worst 
deeds  through  che  medium  of  charity.  He  had  eight  siiters  and  six 
brothers,  with  all  of  whom,  from  youth  to  age,  his  intercourse  wag 
marked  by  the  utmost  kindness  and  affection  ;  and,  although  his  emi- 
nent talents,  high  public  character,  and  acknowledged  usefulness,  could 
not  fail  to  be  a  subject  of  pride  and  admiration  to  all  of  them,  there 
is  no  one  of  his  numerous  relatives,  who  has  had  the  happiness  of  a 
personal  association  with  him,  in  whom  his  purity,  simplicity ;  and  af- 
fectionate benevolence  did  not  produce  a  deeper  and  more  cherished 
impression  than  all  the  achievements  of  his  powerful  intellect." 

And  to  this  may  be  added  the  last,  perhaps  the  most  generous  and 
affecting  tribute  of  that  devoted  associate,  who  mourned  his  loss,  not  as 
a  friend  only,  but  as  a  brother — a  tribute  less  to  be  valued  on  account  of 
any  poetic  beauty,  than  as  an  evidence  of  that  warm  affection,  and 
that  undying  and  reverential  admiration,  which  STORY  never  ceased  to 
entertain  for  MARSHALL.  The  lines,  written  but  a  few  months  after  tho 
death  of  the  Chief-Justice,  were  intended  as  an  inscription  for  A  CENO- 
TAPH. 

*  Sketch  by  Judge  Story.    Miscellanies,  pages,  676  to  682, 
t  Mr.  Binney.    Address  before  the  Councils  of  Philadelphia. 


456  LIVES   OF  THE  CHIEF^JUSTICES. 

"  To  Marshall  reared — the  great,  the  good,  the  wise, 
Born  for  all  ages,  honored  in  all  skies ; 
His  was  the  fame  to  mortals  rarely  given, 
Begun  on  earth,  but  fixed  in  aim  on  Heaven. 
Genius  and  learning  and  consummate  skill, 
Moulding  each  thought,  obedient  to  the  will ; 
Affections  pure  as  e'er  warmed  human  breast, 
And  love  in  blessing  others  doubly  blest ; 
Virtue  unspotted,  uncorrupted  truth, 

.  Gentle  in  age  and  beautiful  in  youth  ; 
These  were  his  bright  possessions.    These  had  power 
To  charm  through  life  and  cheer  his  dying  hour, 
All  these  are  perished  ?    No !  but  snatched  from  time 
To  bloom  afresh  in  yonder  sphere  sublime. 
Kind  was  the  doom  (the  fruit  was  ripe)  to  die,— 
Mortal  is  clothed  with  immortality."          > 


ROGER  B.  TAIEY. 


ROGER  B,  TANEY, 


To  the  stranger  who  for  the  first  time  visits  the  Capitol  at  Washing- 
ton, there  is  no  more  interesting  or  attractive  place  of  resort  than  the 
hall  where  are  held  the  sessions  of  the  Supreme  Court  of  the  United 
States.  It  is  situated  on  the  ground-floor  of  the  building,  in  the  story 
below  that  which  contains  the  chambers  where  the  two  branches  of 
the  Xational  Legislature  assemble.  The  approach  to  it,  through  the 
main  part  of  the  Capitol,  is  by  no  means  inviting.  It  is  from  the 
dark,  damp,  cellar-like,  circular  enclosure  immediately  under  the  ro- 
tunda, where  groups  of  colossal  columns  are  thickly  clustered  together 
for  the  support  of  the  dome  above,  conveying  to  the  mind  the  sole 
idea  of  solid,  massive,  Egyptian-like  architectural  strength.  A  hall 
leading  from  this  enclosure  to  the  south  entrance  of  the  Capitol  con- 
ducts to  the  Supreme  Court  room,  an  apartment  of  moderate  size, 
which,  though  neat,  is  perfectly  plain  in  appearance,  and  simple  in  its 
decorations  and  furniture.  This  apartment  is  lighted  by  windows 
immediately  behind  the  seats  of  the  judges — the  bar  and  the  audience 
sitting  in  front.  The  consequence  of  this  arrangement  is,  that  so  far 
as  the  audience  is  concerned  the  light  is  defective,  and  it  is  often  diffi- 
cult, and  in  a  dark  day  impossible,  for  those  sitting  immediately  iu 
front,  to  distinguish  the  features  of  the  members  of  the  Court  after 
they  have  taken  their  seats. 

If  the  visitor  desires  to  see  the  Court  in  session,  he  has  but  to  take 
his  seat  and  wait  patiently  until  the  appearance  of  the  Judges,  lie 
will  ordinarily  observe  some  few  members  of  the  bar,  other  than  the 
counsel  engaged  in  the  cause  under  argument,  sauntering  in,  and 
taking  their  seats,  and  occasionally  strangers  or  other  visitors  attr 


460  LIVES  OF  THE  CHIEF-JUSTICES. 

by  interest  or  curiosity  ;  unless,  indeed,  some  advocate  of  distinguished 
reputation  is  to  address  the  Court,  or  some  cause  of  more  than  usual 
interest  is  to  bo  called,  in  which  case  the  Court  room  is  quickly 
filled,  and  often  by  an  imposing  and  brilliant  audience  of  ladies. 
It  may  be  perhaps  a  few  minutes  after  the  appointed  hour  of  meeting, 
when,  without  any  flourish  of  parade,  or  announcement,  the  Judges 
enter  in  their  black  silk  gowns,  in  procession, ranked  according  to  the 
dates  of  their  respective  commissions.  At  the  head  of  the  procession 
you  observe  a  tall,  thin  man,  slightly  bent  with  the  weight  of  years, 
of  pale  complexion,  and  features  somewhat  attenuated  and  careworn, 
but  lighted  up  by  that  benignant  expression  which  is  indicative  at 
once  of  a  gentle  temper  and  a  kindly  heart.  With  a  firm  and  steady 
step,  by  no  means  indicating  the  years  which  have  actually  rolled  over 
his  head,  he  approaches  to  take  his  seat.  His  brothers  and  associates 
range  themselves  on  either  hand,  according  to  their  rank,  determined 
by  the  date  of  their  respective  appointments.  Immediately  on-  the 
right  Mr.  Justice  McLsAN  of  Ohio,  the  oldest  Judge  in  commission 
on  the  bench,  takes  his  seat  ;  Mr.  Justice  WAYNE  of  Georgia  on  the 
left  ;  and  so  alternately  on  the  right  and  left  Mr.  Justice  CATRON  of 
Tennessee,  and  Mr.  Justice  DANIEL  of  Virginia,  Mr.  Justice  NELSON 
of  New  York,  and  Mr.  Justice  GRIER  of  Pennsylvania,  Mr.  Justice 
CURTIS  of  Massachusetts,  and  Mr.  Justice  CAMPBELL  of  Alabama. 
Presently  the  crier  will  open  the  Court  with  that  quaint  and  half 
ludicrous  old  formula,  which  has  come  down  to  us  from  the  earliest 
times,  commencing,  "O  yes — O  yes,"  and  ending,  "God  save  the 
United  States  and  this  honorable  Court  I"  The  Court  is  now  in  ses- 
sion and  you  are  in  the  presence  of  one  of  the  three  co-ordinate 
branches  of  the  Federal  government. 

If  it  be  a  cloudy  day,  you  will  not  be  able  to  distinguish,  beneath 
the  dark  mass  of  hair  which  overhangs  the  forehead  of  the  tall,  thin, 
venerable  old  man  who  has  just  taken  his  seat  in  the  midst  of  that 
group  of  Judges,  anything  more  than  the  mere  outlines  of  his  features; 
but  you  will  presently  hear  his  voice,  in  the  blandest  and  most 
affable  of  tones :  "  The  Court  is  ready  to  hear  you,  Mr  Attorney- 
General,"  whereupon  the  argument  of  the  case  at  bar  immediately 
proceeds. 

The  person  who  has  spoken  these  words  is  MR.  CHIEF-JUSTICE  TANEY, 


ROGER  B.  TANEY.  461 

of  whose  life  and  judicial  career  I  am  now  to  attempt  a  sketch.  He 
is  just  seventy-seven  years  of  age,*  and  though  not  in  the  enjoyment  of 
robust  health,  as  his  countenance  indicates,  yet  he  continues  in  the  full 
^possession  of  his  vigorous  intellectual  faculties.  The  present  session 
completes  the  eighteenth  year  of  his  service  on  the  bench  of  the  tribu- 
nal over  which  he  presides,  and  to  which  he  was  appointed  as  the 
successor  of  Chief-Justice  Marshall. 

The  Chief  Justice  is  a  native  of  the  State  of  Maryland,  where 
he  has  always  resided.  His  ancestors,  both  on  the  father's  and 
mother's  side,  were  among  the  earliest  settlers  of  Maryland,  hav- 
ing emigrated  from  England  to  that  colony  in  Cromwell's  time. 
The  name  of  Taney  is  of  Welsh,  or  at  least  of  aboriginal  British 
origin,  and  though  not  common  in  England  at  the  present  day, 
is,  I  am  informed,  still  known  there.f  The  paternal  ancestor  of 
Mr.  Tauey,  who  came  to  Maryland  about  the  year  1656,  was  of 
the  Catholic  faith.  Like  the  Puritans  of  England  in  the  time  of 
Charles  I.,  he  "sought  repose  and  liberty  of  conscience  in  the  wilds 
of  the  new  world ;  for  the  otherwise  liberal  policy  of  the  Pro- 
tector, in  matters  of  religious  worship  and  faith,  did  not  embrace  the 
Catholic,  and  indeed  scarcely  included  the  prelatist,  within  the  pale 
of  toleration.  While  the  government  of  Charles  I.  drove  the  Puritan 
to  the  shores  of  New  England,  that  of  Cromwell  forced  the  Catholic 
into  the  wilderness  of  Maryland,  and  thus  America  became  peopled 
with  the  bone  and  sinew  of  the  English  nation.  The  descendants  of  this 
gentleman  for  several  generations,  Catholics  like  himself,  experienced, 
even  in  their  secluded  retreat  in  Calvert  County,  where  they  tilled  the 
soil  in  peace  with  all  men,  those  civil  disabilities,  and  political  disfran- 
chisements,  which  the  intolerant  legislation  of  the  mother  country 
fastened  upon  a  proscribed  church.  The  Maryland  Convention  in 
1776,  however,  by  its  Constitution  and  Bill  of  Rights,  abolished  these 
arbitrary  distinctions,  and  established  full  and  absolute  equality  of 
citizenship  and  privilege  for  all  religious  denominations.  Subsequent 
to  this  period  the  father  of  the  present  Chief-Justice  was  repeatedly 

*  March,  1854. 

f  Its  orthography  there  seems  to  have  corresponded  more  closely  with  its  pro- 
nunciation. The  case  of  Tawney  vs.  Crowther  may  be  found  in  4th  Brown's 
Chancery  Cases. 


462  LIVES  OF   THE  CHIEF-JUSTICES. 

elected  to  represent  his  native  country  in  the  Maryland  House  of 


On  the  mother's  side  Chief-Justice  Taney  is  descended  from  Dr. 
Roger  Mainwaring,  Bishop  of  St.  David's,  in  the  time  of  Charles  I., 
a  gentleman  of  a  noble  family  from  Cheshire.  The  Bishop  of  St. 
David's  was  the  friend  of  Archbishop  Laud,  and  owed  his  preferment 
in  the  church  to  the  good  offices  of  that  celebrated  but  unfortunate  pre- 
late. His  second  daughter,  Mary,  intermarried  with  Robert  Brooke. 
Esquire,  a  gentleman  of  good  family  in  Sussex,  and  one  of  the  issue  of 
this  marriage  was  Roger*  Brooke,  the  lineal  ancestor  of  the  Chief- 
Justice,  from  whom  his  Christian  names  are  derived.  The  family 
came  to  America  in  1650,  and  settled  in  Calvert  County,  where  the 
paternal  ancestors  of  the  Chief-Justice,  after  their  arrival,  also  resided.* 

ROGER  BROOKE  TANEY  was  born  in  Calvert  county  in  the  State  of 
Maryland,  on  the  17th  March,  1777.  He  was  educated  at  Dickinson 
College,  Carlisle,  in  the  State  of  Pennsylvania,  of  which  Institution  he 
became  a  student  in  the  spring  of  1792.  The  College  was  then  under 
the  superintendence  of  the  Rev.  Dr.  Nesbitt,  a  Scotch  Presbyterian 
divine,  celebrated  for  his  wit  and  classical  attainments.  Taney 
continued  a  member  of  this  institution  three  years,  and  was  graduated 
in  the  year  1795.  He  commenced  the  study  of  the  law  in  the  spring 
of  the  following  year  at  Annapolis,  where  the  principal  courts  of  Mary- 
land were  then  held,  in  the  office  of  Jeremiah  Townley  Chase,  who 
two  years  before  had  been  appointed  Chief-Judge  of  the  General  Court 
of  Maryland.  The  bar  of  this  Court,  at  that  time,  was  ornamented 
with  a  brilliant  constellation  of  professional  talent,  which  might  com- 
pare favorably  with  that  of  any  other  State  in  the  Union.  The 
advantage  of  mingling  with  his  older  professional  brethren,  and  of 
witnessing  their  efforts,  was  not  without  its  influence  on  the  mind 
of  the  young  student,  and  excited  in  his  breast  a  warm  and  eager 
*  Robert  Brooke,  who  came  to  America  in  1650,  was  the  first  who  seated  Patux- 
ent,  about  twenty  miles  up  the  river,  at  Delabrooke.  Soon  after  his  arrival  Lord 
Baltimore  appointed  him  Commander  of  Charles  County,  and  when  the  govern- 
ment of  Cromwell  became  established  in  1652,  he  was  chosen  by  the  Commis- 
sioners for  reducing  the  Plantations,  Governor  of  Maryland.  About  the  same 
time  he  removed  to  the  opposite  side  of  the  river  Patuxent,  and  dying  on  the  20th 
July.  1663,  was  buried  at  his  seat,  Brooke  Place  Manor,  in  Calvert  County. 
Maryland. 


ROGER  B.  TANEY.  4(J3 

spirit  of  professional  emulation.  During  this  period,  too,  he  laid  the 
foundation  of  those  solid  professional  attainments,  and  acquired  those 
habits  of  industry  and  patient  investigation  which  contributed  so 
largely  to  his  subsequent  eminent  success. 

In  the  spring  of  1799,  three  years  after  he  commenced  the  study  of 
the  law,  he  was  admitted  to  the  bar,  and  immediately  returned  to  his 
native  county  of  Calvert  to  enter  upon  the  practice  of  his  profes- 
sion. Almost  before  he  had  made  his  debut  at  the  bar,  however,  he 
was  called  into  political  life,  being  elected  in  the  autumn  of  the  same 
year  a  delegate  to  the  General  Assembly  of  Maryland.  Mr.  Taney 
was  then  scarcely  twenty-three  years  of  age  and  the  youngest  member 
of  the  House  of  Delegates  ;  yet  it  is  said,  that  amid  the  stormy  de- 
bates which  occurred  in  that  body,  consequent  upon  the  unprece- 
dented popular  excitement  growing  out  of  the  canvass  between  Adams 
and  Jefferson  for  the  presidency,  he  displayed  an  intrepidity  of  char- 
acter and  an  uprightness  of  motive  which  gained  for  him  the  admira- 
tion of  his  cotemporaries.  He  was  in  the  house  of  delegates  at  the 
time  the  announcement  of  the  death  of  Washington  was  made  to  that 
body,  and  well  remembers  the  impressive  scene.  As  Charles  Carroll 
of  Carrollton,  and  John  Eager  Howard,  the  Committee  from  the 
Senate,  entered  the  hall  of  the  House  to  make  the  announcement, 
the  members  received  them  standing  and  in  respectful  silence  ;  and  as 
Mr.  Carroll  communicated  the  afflicting  intelligence,  the  tears  streamed 
down  his  cheeks,  while  many  an  eye  around  him  was  also  filled  in  sym- 
pathetic sorrow.  It  was  a  moment  when  the  voice  of  faction  was 
hushed,  and  the  din  of  political  strife  melted  away  into  profound  and 
reverential  silence  ;  for  all  could  unite  in  heartfelt  homage  to  the  mem- 
ory of  the  illustrious  dead. 

Mr.  Taney  declined  a  reelection  to  the  Maryland  legislature,  with 
the  view  of  applying  himself  more  closely  to  the  practice  of  his  pro- 
fession. The  following  year  he  removed  to  Fredericktown,  in  the 
county  of  Frederick,  that  being  regarded  as  a  more  eligible  and  ex- 
tended field  for  the  pursuit  of  his  professional  avocations.  IKn 
he  remained  in  the  practice  of  the  law  with  a  constantly  in- 
creasing success  and  growing  reputation,  until  his  removal  to  Bal- 
timore, a  period  of  twenty-two  years.  When  he  entered  upon  it 
the  scene  was  entirely  new  to  him.  He  was  comparatively  a  Btrau- 


464  LIVES  OF  THE  CHIEFJUSTICES. 

ger  in  that  part  of  the  State.  A  young  man  of  three  or  four  and 
twenty,  with  few  acquaintances,  little  personal  influence,  and  but 
a  small  stock'  of  experience,  his  was  certainly  at  the  outset  no 
easy  and  sunshine  journey  up  the  steep  and  rugged  ascent  which 
leads  to  professional  eminence,  and  which  requires,  even  under 
the  most  flattering  auspices,  so  large  a  share  of  hope,  ambition  and 
energy  to  surmount.  "  But,"  remarks  the  writer  of  a  brief  notice  of 
the  Chief- Justice*  "  the  wary  and  reflecting  yeomanry  of  Frederick, 
Washington,  Alleghany  and  Montgomery  counties  soon  discovered 
that  his  industry  had  no  bounds  ;  that  he  possessed  a  mind  of  the 
highest  order  ;  that  judgment,  acuteness,  penetration,  capacious  mem- 
ory, accurate  learning,  steady  perseverance  in  the  discharge  of  duty, 
a  lofty  integrity,  united  with  a  grave  and  winning  elocution  were 
developed.  These  qualifications  were  soon  rewarded  with  an  exten- 
sive and  lucrative  practice.  As  his  powers  were  unfolded  with  expe- 
rience, they  saw  that  in  the  argument  of  important  causes,  he  disen- 
tangled what  was  intricate,  confirmed  what  was  doubtful,  embellished 
what  was  dry,  and  illustrated  what  was  obscure." 

It  was  but  a  few  years  after  his  settlement  in  Frederick  ere  Mr. 
Taney  by  the  force  of  his  talents  and  industry  raised  himself  to  a  respect- 
able and  prominent  position  at  the  bar.  He  was  soon  employed  ia 
many  of  the  most  important  causes  arising  in  that  part  of  the  State. 
His  practice  was  both  lucrative  and  extensive,  not  only  in  the  county 
courts  in  the  judicial  district  in  which  he  resided,  but  also  in  the  Court 
of  Appeals.  The  reports  of  cases  in  that  Court  by  Harris  and 
Johnson  exhibit  abundant  evidence  of  his  ability,  his  industry  and 
his  success  as  an  advocate,  even  before  his  removal  to  Baltimore. 
They  show,  too,  that  he  was  frequently  associated  with,  and  opposed 
by  the  most  eminent  and  able  members  of  that  distinguished  and  bril- 
liant bar.  which  then  assembled  in  the  Maryland  Court  of  Appeals, 
and  that  he  grappled  successfully  in  intellectual  conflict  with  such 
men  as  Pinkney,  Winder,  Martin,  Harper,  Williams  and  Johnson. 
Thus  in  1821,  in  conjunction  with  Mr.  Harper,  he  argued  in  successful 
opposition  to  Pinkney,  Winder  and  Williams,  the  highly  important 
cause  of  Brown  775.  Kennedy,  f  which  brought  up  for  discussion,  and 

*  Southern  Literary  Magazine,  June,  1838. 
t  5  Harrison  and  Johnson's  Reports,  195. 


ROGER    B.    TANEY.  4(55 

finally  settled,  a  very  novel  question  relative  to  the  original  proprietary 
title  to  lands  reclaimed  from  the  navigable  waters  of  Maryland  ;  and 
the  following  year,  associated  with  General  Winder  and  Mr.  Murray, 
we  find  him  opposed  by  Harper  and  Johnson  in  the  argument  of  a 
cause  eliciting  all  the  learning  connected  with  the  intricate  law  of 
charitable  trusts,  an  argument  which  from  the  brief  analysis  preserved 
in  the  report,  seems  to  have  been  characterized  by  an  unusual  degree 
of  research  and  ability. 

During  the  period  of  his  residence  in  Frederick,  Mr.  Taney's  prac- 
tice at  the  bar  was  of  the  most  general  and  miscellaneous  character. 
It  embraced  the  widest  range  of  subjects  and  every  description  of 
jurisprudence,  criminal  as  well  as  civil — in  the  county  courts,  the 
courts  of  equity,  the  Court  of  Appeals,  before  commissioners,  before 
courts  martial,  and  before  judicial  tribunals  of  every  other  character 
and  description.  This  indeed  is  the  common  experience  of  most  advo- 
cates who  have  risen  to  eminence  at  the  Americau  bar.  Unlike  the 
example  set  us  in  the  courts  of  England,  from  which  both  our  equity  and 
common  law  systems  are  derived,  a  division  of  professional  labor  or 
rather  of  professional  pursuit  is  not  very  strictly  observed  among  us. 
The  exact  conveyancer,  the  skilful  pleader,  and  the  ingenious  advo- 
cate are  not  unfrcquently  found  united  in  the  same  person — and  the 
framer  of  a  brief  is  often  no  other  than  the  very  individual  who  undertakes 
to  unfold  and  elucidate  it  before  the  Court.  The  door  of  every  tribu- 
nal is  supposed  to  be  equally  open  to  the  American  lawyer,  and  in 
each  he  is  expected  to  sustain  himself  with  the  same  degree  of  ability 
and  reputation.  The  practice  of  Mr.  Tancy  in  this  respect  seems  not 
to  have  differed  from  this  common  professional  experience,  and  the  tra- 
ditional accounts  of  his  successes  in  these  various  and  diversified  pro- 
fessional engagements,  certainly  exhibit  him  as  the  possessor  of  no 
inconsiderable  versatility  of  talent. 

In  1811,  associated  with  John  Hanson  Thomas,  he  defended  Gen- 
eral Wilkinson,  then  Commander-in-Chief  of  the  United  States  Army, 
before  the  military  court  convened  at  Frederick,  to  try  him  on  a  series 
of  grave  and  high  accusations.  The  cause  was  unpopular.  Wilkinson 
had  aroused  the  jealousies  of  the  people  when  he  suspended  the  habvis 
corpus  in  1806,  and  imprisoned  Bollman  and  Swurtwoutasaccomplkvs 
in  Burr's  treason.  We  have  seen  him  as  a  witness  on  the  trial  of 
30 


466  LIVES  OF  THE  CHIEF-JUSTICES. 

Burr,*  where  he  gained  little  credit  and  less  popularity,  many  regard- 
ing Mm  as  having  been  himself  implicated  in  Burr's  designs.  The 
manners  of  Wilkinson  were  haughty  and  unprepossessing.  He  scorned 
instead  of  attempting  to  conciliate  the  popular  favor  ;  and  besides,  he 
was  in  peculiar  odium  with  a  large  portion  of  the  people  of  Frederick, 
by  reason  of  his  having  on  a  former  occasion  successfully  prosecuted, 
before  a  court-martial  in  that  town,  a  gallant  and  veteran  revolution- 
ary officer.  Notwithstanding  all  this,  Mr.  Taney  did  not  hesitate 
generously  to  step  forward  and  render  his  professional  services  to  the 
accused,  on  being  selected  by  him  as  one  of  his  legal  advisers.  He 
himself  shared  something  of  the  popular  feeling  against  Wilkinson,  and 
the  latter  was  no  stranger  to  the  fact.  Yet  with  a  full  knowledge  of 
Mr.  Taney's  personal  sentiments,  so  highly  did  Gen.  Wilkinson  regard, 
not  his  abilities  only,  but  his  integrity  and  honor,  that  he  selected  him 
without  hesitation  as  one  of  his  counsel  on  this  important  trial.  The 
notions  of  Mr.  Taney  in  regard  to  professional  duty  were  too  exalted, 
and  of  too  chivalrous  a  nature,  to  induce  him  to  think  of  declining  the 
ungracious  task.  Perhaps  the  very  unpopularity  of  Wilkinson,  and 
his  present  helpless  and  defensive  attitude,  had  more  weight  with 
Taney  that  any  other  considerations.  He  undertook  the  defence  of 
the"  accused,  and  fearlessly  and  without  hesitation,  braved  the  public 
opprobrium.  For  several  months  he  labored,  loyally,  faithfully,  zeal- 
ously, and  it  must  be  added,  successfully,  for  his  client.  Wilkinson 
was  acquitted,  his  sword  was  restored,  and,  it  is  said,  his  counsel 
received  no  other  reward  than  the  gratitude  of  the  veteran's  heart. 

Other  instances  might  be  recorded  equally  honorable  to  the  profes- 
sional character  of  Mr.  Taney,  in  which  he  unflinchingly  braved  popu- 
lar censure  in  the  discharge  of  his  duty,  and  exhibited  a  like  spirit  of 
fearless  independence.  I  shall  mention  but  one  of  these,  which  is  still 
well  remembered  by  the  older  inhabitants  of  Frederick,  where  Mr. 
Taney  then  resided.  A  Methodist  preacher,  well  known  as  Father 
Gruber,  had  been  indicted  for  preaching  insurrection  among  the  slaves 
at  a  camp-meeting  of  negroes,  and  Mr.  Taney  defended  him  on  his 
trial.  The  case  excited  great  feeling  among  many  of  the  inhabitants 
of  that  vicinity  who  were  slaveholders,  and  the  court  at  which 
Gruber  was  tried  partook  of  the  excitement.  On  the  trial,  the 
*  Ante,  p,  37&. 


ROGER  B.  TANEY.  457 

prosecuting  attorney,  who  was  not  a  very  capable  man,  soon  broke 
down,  and  one  of  the  Judges,  carried  away  by  his  private  feelings, 
and  perhaps  considering  that  full  justice  was  not  done  by  the 
prosecutor,  took  the  examination  of  the  witnesses  into  his  own 
hands.  At  that  time  the  authority  of  the  Judges  with  juries  was 
very  great,  and  Father  Gruber  was  thus  placed  in  imminent  peril. 
Mr.  Taney  suffered  the  examination  to  proceed  for  some  time,  without 
interruption,  until  the  Judge,  in  the  heat  of  his  inquiries,  asked  a 
question  which  was  clearly  improper  and  inadmissible.  Taney  had 
found  the  opportunity  for  which  he  had  waited,  and  springing  from 
his  seat,  promptly  objected  to  the  question  as  illegal.  So  well-founded 
was  the  objection,  that  the  other  judges  were  forced  to  rule  it  against 
their  brother,  and  from  that  moment  the  examination  from  the  bench 
ceased.  The  prisoner  was  acquitted,  and  for  a  long  period  the  Meth- 
odists of  that  section  of  the  country  entertained  the  kindest  feelings 
for  the  Roman  Catholic  advocate,  who  had  successfully  defended  their 
pastor  against  both  popular  excitement  and  judicial  power. 

In  1816,  Mr.  Taney  was  partially  diverted  from  his  professional 
pursuits,  by  his  election  to  the  Maryland  Senate.  Under  the  State 
Constitution,  as  it  then  stood,  the  Senate  consisted  of  fifteen  mem- 
bers, whose  term  of  service  was  five  years.  They  were  selected  by  a 
body  of  electors  composed  of  two  members  chosen  in  each  county  by 
the  people,  and  one  from  each  of  the  cities  of  Baltimore  and  Anna- 
polis. Mr.  Taney  was  chosen  one  of  the  electors  from  the  county  of 
Frederick,  and  appointed  by  the  electoral  body  a  member  of  the 
Senate.  His  connection  with  this  body,  and  his  associations,  both  per- 
sonal and  political,  were  of  the  most  agreeable  character.  I  have 
heard  the  Chief-Justice  himself  remark,  that  if  there  is  one  portion  of 
his  career  which  he  looked  back  upon  with  more  satisfaction  and 
pleasure  than  another,  it  is  the  period  of  his  service  in  the  Maryland 
Senate.  His  reminiscences  of  the  men  and  events  of  that  time  would 
no  doubt  form  a  highly  interesting  and  agreeable  chapter  ;  but  the-c 
reminiscences,  except  so  far  as  they  relate  to  public  affairs,  are  mostly 
within  his  own  memory,  and  the  memories  of  the  few  of  his  asso< 
who  may  still  survive.  The  habitual  reserve  of  the  Chief-Justice,  lii> 
reluctance  to  speak  of  himself,  or  of  his  own  acts  and  experiences,  and 
the  consequent  limited  information  in  regard  to  them,  possessed  even 


465  LIVES  OF  THE  CHIEF-JUSTICES. 

by  those  of  his  friends  who  know  him  best,  have  rendered  my  inquiries 
on  the  subject  fruitless,  and  prevent  me  from  gratifying  any  curiosity 
which  the  reader  might  feel,  to  know  something  of  those  personal  and 
private  recollections  which  have  left  behind  them  such  an  agreeable 
and  enduring  impression.  Of  his  official  services,  and  the  public  and 
political  measures  in  which  he  was  engaged,  being  mainly  of  a  local 
or  State  interest,  it  is  perhaps  unnecessary  here  to  speak.  Suffice  it 
to  say,  that  he  acquitted  himself  in  the  Senate,  as  he  had  done  at  the 
bar,  and  as  he  subsequently  acquitted  himself  on  the  bench,  with 
eminent  ability.  Having  served  to  the  end  of  the  period  for 
which  he  was  elected,  he  again  turned  with  unremitted  industry  and 
application,  and  renewed  ardor,  to  the  exclusive  practice  of  his 
profession. 

Mr.  Tauey  removed  to  the  city  of  Baltimore  in  the  year  1823. 
The  recent  death  of  Pinkney  had  left  a  vacuum  in  the  ranks  of  the 
able  and  talented  bar  of  that  city,  which  no  one,  even  with  professional 
abilities  of  the  very  first  order,  could  expect  at  once  to  fill.  Never- 
theless, the  field  was  too  tempting  alike  to  professional  zeal  and  ambi- 
tion, to  be  shunned.  Taney  entered  upon  it  in  the  full  vigor  of  his 
faculties,  with  an  established  reputation,  and  with  talents  and  attain- 
ments that  fitted  him  to  maintain  it  against  all  opposition. . 

The  death  of  Martin,  of  Harper,  and  of  Winder,  would  have  left  him 
not  only  confessedly  at  the  head  of  the  Baltimore  bar,  but  almost 
without  a  rival,  had  not  William  Wirt  removed  to  that  city  in  1829, 
to  dispute  with  him  the  sceptre  of  professional  eminence.  Within  the 
year  of  Wirt's  settlement  in  Baltimore,  he  and  Taney  were  all  that 
remained  of  the  older  members  of  the  bar  in  ,that  city.  They  stood, 
says  Kennedy  in  his  Life  of  Wirt,  among  a  younger  generation — Me- 
redith, Johnson,  Glenn,  M'Mahon,  Mayer, — and  at  their  head,  "in- 
structors to  guide,  models  to  be  imitated,  gifted  with  all  qualities  to 
stimulate  the  ambition  of  generous  minds  striving  after  an  honorable 
fame." 

On  his  removal  to  Baltimore,  he  entered  upon  that  more  enlarged 
sphere  of  practice  to  which  the  Federal  Supreme  Court  introduced 
him.  From  this  period  down  to  the  time  of  his  resigning  the  office  of 
Attorney-General  of  the  United  States,  he  was  frequently  engaged  in 
the  argument  of  causes  in  the  Supreme  Court  at  Washington,  hia 


ROGER  B.  TANEY.  4^9 

name  being  foaad  upon  the  record,  as  counsel  in  almost  every  case  of 
importance,  arising  from  the  Maryland  district.  In  1825,  we  find  him 
engaged  in  the  case  of  Manro  vs.  Almeida* — an  admiralty  case  from 
the  Circuit  Court  of  Maryland — in  which  some  very  important  ques- 
tions relative  to  the  jurisdiction  and  practice  of  courts  of  Admiralty 
and  maratime  jurisdiction  are  discussed.  This  braucli  of  the  law,  it  is 
well  known,  was  a  favorite  study  with  Judge  Story  ;  and  the  argu- 
ment of  Taney,  though  he  was  upon  the  losing  side  of  the  case,  seems 
to  have  attracted  the  attention  of  that  eminent  judge.  At  the  very 
next  session  of  the  court,  in  a  private  letter  to  a  friend  at  home,  Story 
remarks  :  "  The  Court  has  been  engaged  in  its  hard  and  dry  duties 
with  uninterrupted  diligence.  Hitherto  we  have  had  but  little  of  that 
refreshing  eloquence  which  makes  the  labors  of  the  law  light ;  but  a 
case  is  just  rising  which  bids  fair  to  engage  us  all  in  the  best  manner. 
Webster,  Wirt,  Taney — a  man  of  fine  talents,  whom  you  have  proba- 
bly not  heard  of — and  Emmett,  are  the  combatants,  and  a  bevy  of 
ladies  are  the  promised  and  brilliant  distributors  of  the  prizes."f 

The  case  referred  to  was  that  of  Etting  vs.  The  Bank  of  the  United 
States.!  H  was  a  su^  involving  a  large  amount  of  property.  One 
of  the  questions  raised  and  discussed  was  a  principle  of  legal  ethics,  name- 
ly :  What  concealment  or  suppression  of  material  facts  in  a  contract, 
where  both  parties  have  not  equal  access  to  the  means  of  information, 
will  avoid  the  contract  ?  Taney  was  associated  with  Webster,  for  the 
plaintiff  in  error,  who  sought  to  avoid,  on  the  ground  of  fraud,  the  con- 
tract on  which  the  Bank  had  recovered  judgment,  and  Emmett,  with 
the  Attorney-General  Wirt,  appeared  for  the  Bank.  What  the  argu- 
ment must  have  been  when  such  "  combatants"  entered  the  intellect- 
ual arena,  the  reader  will  judge  for  himself.  The  Chief-Justice,  in  his 
opinion,  speaks  of  the  "  great  efforts  which  have  been  bestowed  upon 
the  case,"  and  the  "  very  elaborate  arguments  which  have  been  made 
at  the  bar."  But  all  these  efforts  and  arguments  were  wasted,  as  the 
case  went  off  upon  a  mere  question  of  practice,  leaving  the  principles 
of  law,  which  had  been  discussed,  unsettled.  Morally  it  might  have 
been  considered  a  drawn  battle,  but  for  all  practical  purposes  the 

*  10  Wheaton's  Reports,  473. 
f  Life  and  Letters  of  Story. 
J  11  AV'heaton's  Reports,  69. 


4:70  LIVES    OF    THE    CHIEF-JUSTICES. 

Bank  achieved  a  complete  victory,  inasmuch  as  the  Court,  being  di- 
vided in  opinion,  judgment  was  affirmed. 

Mr.  Taney  was  engaged  at  the  same  term — the  Attorney-General 
Wirt  being  his  associate,  and  Webster  one  of  his  opponents — in  the 
argument  of  the  interesting  case  of  Cassell  vs.  Charles  Carroll  of 
Carrollton.*  It  was  a  claim  made,  under  the  original  proprietory  title  of 
Maryland  (which  had  been  confiscated  during  the  revolution),  to  cer- 
tain quit  rents  reserved  on  a  large  tract  of  land  granted  by  Lord 
Baltimore  to  the  father  of  Charles  Carroll.  The  whole  question,  as  to 
the  right  of  the  heir  of  Lord  Baltimore  to  these  quit  rents  (which  the 
people  of  Maryland  had  repudiated  since  1773,)  was  argued  with 
great  learning  and  ability  on  both  sides  ;  Mr.  Taney  sustaining  the 
defendant  against  the  proprietary  claim.  Judge  Story  in  his  opinion 
speaks  of  the  "  important  and  difficult  points "  discussed,  and  the 
"  great  ability  and  care  "  of  the  argument,  but  the  decision  did  not 
determine  the  more  important  and  complex  question  discussed,  as  to 
the  validity  of  the  proprietary  claim,  it  having  been  placed  entirely 
upon  a  collateral  question,  namely,  that  the  interest  under  which  the 
plaintiff  claimed,  had  been  long  since  transferred  and  divested  by  a 
valid  assignment.  The  judgment  in  favor  of  Charles  Carroll,  Mr. 
Taney's  client,  was  accordingly  affirmed. 

In  the  preceding  sketch  of  Chief-Justice  Marshall,  I  have  alluded 
to  the  case  of  Brown  vs.  The  State  of  Mary  land,  f  argued  at  the  Jan- 
uary term,  1827,  which  involved  in  the,  discussion,  and  finally  settled, 
a  principle  of  constitutional  law,  of  a  character  so  vital  and  impor- 
tant, as  to  make  this  a  leading  case,  always  cited  as  authority  and  for 
illustration,  in  every  future  discussion  in  which  the  question  was  raised. 
Here  Taney  again  met  his  former  antagonist,  William  Wirt.  Each  of 
them  was  associated  with  a  junior  member  of  the  Baltimore  bar,  the 
former  with  Johnson,  and  the  latter  with  Meredith.  The  power  and 
brilliancy  of  the  discussion  was  equal  to  the  magnitude  and  importance 
of  the  question  presented.  That  question  was  as  to  the  constitutionality 
of  a  law  of  the  Maryland  legislature,  which  required  the  importers  of 
foreign  goods  to  take  out  and  pay  for  a  license  under  certain  penalties 
and  forfeitures  ;  an  act  which  it  was  claimed  was  repugnant  to  the 

*  11  Wheaton's  Reports,  134. 
t  Ante,  page  424. 


ROGER  B.  TANEY.  4.^ 

provisions  of  the  Constitution  which  vested  Congress  with  power  to 
regulate  commerce,  and  which  prohibited  the  States  from  levying  im- 
posts. Taney  sustained  the  State  law — the  Attorney-General  opposed 
it.  The  latter  succeeded,  but  the  former  came  out  of  the  contest 
with  untarnished  laurels,  and  undimiuished  reputation.  Though  in  the 
warmth  of  professional  excitement  and  emulation,  he  was  at  first  in- 
clined to  regard  the  decision  of  the  Court  with  disfavor,  yet  his  cooler 
and  more  matured  judgment  fully  approved  it.  Twenty  years  after- 
wards, in  one  of  those  frequent  discussions  of  the  same  constitutional 
provision,  to  which  he  listened  on  the  bench,  he  gave  his  full  assent,  as 
a  judge,  to  the  correctness  and  propriety  of  the  decision.* 

Taney  encountered  the  Attorney-General  in  two  other  cases  at 
this  session  of  the  Court.  In  the  first  of  these,  The  United  States  vs. 
Gooding,f  an  indictment  for  a  violation  of  the  Slave  Trade  act,  he 
was  successful,  Judge  Story  delivering  the  opinion  of  the  Court,  which 
declared  the  indictment  fatally  defective  ;  in  the  latter,  Drummond  vs. 
Prestman,^  presenting  a  question  of  commercial  law,  he  failed,  Judge 
Johnson  delivering  the  judgment.  These  cases,  however,  present 
nothing  worthy  of  note,  except  to  the  professional  reader,  by  whom 
they  may  be  consulted  in  the  reports. 

The  following  May  Mr.  Taney  was  engaged  in  opposition  to  his 
renowned  antagonist,  Mr.  Wirt,  on  the  argument  of  the  celebrated 
mandamus  case  against  the  Rev.  Mr.  Duncan,  which  the  graphic  pen 
of  Mr.  Kennedy  has  so  felicitously  described  in  his  life  of  Mr.  Wirt. 
Mr.  Duncan  was  a  Presbyterian  clergyman  of  Baltimore,  and  the  pro- 
ceeding seems  to  have  been  to  oust  him,  and  the  portion  of  the  con- 
gregation who  adhered  to  him,  from  the  possession  of  the  church 
property.  This  gave  Mr.  Wirt  the  opportunity  of  making  one  of 

*  In  the  decision  of  the  License  Cases,  1847,  referring  to  the  case  of  Brown  vs. 
Maryland,  he  remarks  :  "I  at  that  time  persuaded  myself  that  I  was  right;  and 
thought  the  decision  of  the  Court  restricted  the  powers  of  the  State  more  than  a 
Bound  construction  of  the  Constitution  of  the  United  States  would  warrant.    But 
further  and  more  mature  reflection  has  convinced  me  that  the  rule  laid  down  by 
the  Supreme  Court  is  a  just  and  safe  one,  and  perhaps  the  best  that  could  have 
been  adopted  for  preserving  the  right  of  the  United  States  on  the  one  hand,  and 
of  the  States  on  the  other,  and  preventing  collision  between  them, 
f  12  Wheaton's  Reports,  4CO.' 
J  12  Wheaton'e  Reports,  620. 


472  LIVES  OF  THE  CHIEF-JUSTICES. 

those  pointed  and  happy  quotations,  which,  in  the  hands  of  that 
master  of  rhetoric,  often  carried  with  them  a  more  potent  conviction 
than  the  subtlest  argument  or  the  clearest  demonstration.  We  can 
well  imagine  what  must  have  been  the  effect,  upon  the  thronged  audi- 
ence crowding  the  Court-room,  of  that  splendid  burst  of  declamation 
with  which  Wirt  concluded  his  speech,  especially,  when  turning  to  the 
excellent  Mr.  Duncan,  modestly  shrinking  at  the  sound  of  his  own 
praises,  "  he  exclaimed,"  says  Mr.  Kennedy,  "  with  the  most  graceful 
elocution, — 

'  Besides,  this  Duncan 

Hath  borne  his  faculties  so  meek,  hath  been 
So  clear  in  his  great  office,  that  his  virtues 
Will  plead  like  angels,  Iruinpet-tongaed  against 
The  deep  da'muation  of  liu  taking  off.'"  * 

What  may  have  been  the  merits  of  Mr.  Taney's  argument,  or  the 
force  of  his  reasoning,  in  comparison  with  that  of  his  gifted  antagonist, 
we  are  left  to  conjecture.  Certain  it  is  he  failed  in  his  application,  and 
Mr.  Duncan  and  his  friends  were  left  in  possession  of  the  field,  or, 
more  literally,  the  church  property.  The  trial  being  before  the 
Court — an  audience  proverbially  unirnpressible,  and  deaf  to  cloqueut 
appeals  and  rhetorical  figures — it  is  but  reasonable  to  suppose  that 
Mr.  Wirt  owed  his  victory  as  much  to  .the  solidity  and  force  of  .his 
argument  as  to  the  felicity  and  aptness  of  his  illustrations. 

During  the  same  year  that  this  trial  occurred — the  year  1827 — Mr. 
Taney  received  the  appointment  of  Attorney-General  of  Maryland. 
This  appointment  was  made  by  the  Governor  and  Council ;  and  it  is  a 
fact  worthy  of  mention,  as  it  is  equally  honorable  to  both  parties,  that 
Mr.  Taney  was  at  that  time  politically  opposed  to  the  body  which 
conferred  upon  him  the  office.  The  latter  were  the  ardent  supporters 
of  Mr.  Adams,  who  was  then  President,  and  the  former  was  equally 
decided  and  open  in  his  preference  for  General  Jackson.  Yet,  not- 
withstanding it  was  a  time  when  party  feelings  ran  high,  and  the  con- 
test had  become  animated,  the  Maryland  Council  did  not  hesitate  to 
confer  the  appointment  upon  Mr.  Taney,  thus  evincing  in  a  most 
marked  manner  their  high  appreciation  of  his  personal  character  as 
well  as  of  his  distinguished  professional  abilities.  This  office  he  held 

*  2  Kennedy's  Life  of  Wirt,  page  199. 


ROGER  B.  TANEY  473 

until  Jniie,  1831,  when  he  resigned  it,  upon  receiving  the  appoint- 
ment of  Attorney-General  of  the  United  States. 

In  the  mean  time  Mr.  Taney  continued  his  extensive  and  lucrative 
practice  in  the  Federal  Courts.  Among  the  important  cases  in 
which  he  was  employed  intermediate  the  date  of  his  appointment  as 
Attorney-General  of  Maryland  and  as  Attorney-General  of  the 
United  States,  may  be  mentioned  the  following  :  McLanahan  rs.  The 
Universal  Insurance  Company,*  at  the  session  of  1828,  in  which 
some  highly  interesting  questions  on  the  law  of  marine  insurance 
arose,  and  in  which  he  successfully  encountered  the  Attorney-General 
Wirt,  and  that  eminent  and  able  lawyer,  Mr.  David  B.  Ogden,  of 
New  York.  The  interesting  and  important  case  of  Van  Ness  vs.  The 
City  of  Washington  and  the  United  States,  f  at  the  session  of  1830, 
eliciting  a  splendid  forensic  discussion,  in  which  Mr.  Taney,  the  then 
Attorney-General  Mr.  Berrian,  Mr.  Wirt,  Mr.  Webster,  and  Mr. 
Jones  participated.  The  cases  of  Tiernan  vs.  Jackson,  The  Petapsco 
Insurance  Company  vs.  Southgate,  and  Shepherd  vs.  Taylor,  at  the 
session  of  1831,J  in  the  two  former  of  which  Mr.  Taney  was  opposed 
by  Mr.  Wirt,  and  in  the  latter,  involving  an  interesting  question  of 
Admiralty  jurisdiction,  was  associated  with  that  eminent  counsel.  In 
all  these  discussions  Mr.  Taney  acquitted  himself  with  marked  ability, 
and  fully  vindicated  his  claim  to  stand  with  Webster,  and  Wirt,  and 
Berrien,  in  the  very  front  rank  of  advocates  at  the  American  bar. 

During  all  this  period  Mr.  Taney  was  engaged  in  an  extensive  and 
constantly  increasing  practice  in  the  Maryland  State  Courts,  and 
especially  in  the  Court  of  Appeals.  I  have  already  alluded  to  the 
seven  volumes  of  Harris  and  Johnson's  reports — extending  over  a 
period  of  twenty-six  years,  commencing  at  the  year  1800 — as  exhibiting 
abundant  evidence  of  the  professional  talent  of  the  Chief-Justice  prior 
to  his  removal  to  Baltimore.  After  this  period  the  field  of  his  labor 
was  enlarged,  and  his  services  were  sought,  on  one  side  or  the  other,  in 
nearly  every  controversy  of  great  magnitude  litigated  in  the  highest 
tribunal  of  the  State.  The  professional  reader  who  has  the  curiosity 
to  look  through  the  two  volumes  of  Harris  and  Gill's  reports,  exteud- 

*  1  Peters'  Reports,  170. 
t  4  Peters'  Reports,  232. 
J  5  Peters'  Reports,  580,  604,  675. 


474  LIVES  OF  THE  CHIEF-JUSTICES. 

ing  from  1826  to  1829,  and  the  first  two  or  three  volumes  of  Gill  and 
Johnson's,  bringing  the  reported  cases  down  to  the  time  of  Taney's 
appointment  as  Attorney-General  of  the  United  States,  will  perceive 
that  he  was  employed  in  most  of  the  cases  of  importance  argued  dur- 
ing this  period  in  the  Maryland  Court  of  Appeals.  These  cases  em- 
brace every  variety  of  controversy  known  to  the  law,  both  legal  and 
equitable,  the  Court  having  appellate  jurisdiction  over  the  Court  of 
Chancery  as  well  as  the  Common  Law  Courts.  To  show  the  diversi- 
fied character  of  his  professional  avocations,  and  the  extent  and  variety 
of  his  labors,  it  may  not  be  amiss  in  this  place  briefly  to  allude  to 
some  of  the  more  prominent  of  these  cases.  They  are  taken  almost 
at  random  from  the  volumes  of  reports  above  alluded  to. 

The  case  of  Ringgold  vs.  Ringgold,*  a  case  of  great  magnitude  and 
interest,  drawing  out  a  discussion  of  the  whole  equitable  doctrine  of 
trusts,  and  the  relative  rights,  duties,  and  responsibilities  of  trustees 
and  their  cestuis  que  trust,  was  decided  in  1826.  Mr.  Tauey  was 
associated  in  the  argument  with  Wirt,  Jones,  and  Magruder,  and 
opposed  by  Berrian,  Hoffman,  and  Mayer. 

Betts  vs.  The  Union  Bank  of  Maryland,  f  at  the  June  term  1827, 
called  out  from  him  an  admirable  argument  in  support  of  the  common 
law  principle,  that  although  a  particular  consideration  is  mentioned 
in  a  deed,  yet  proof  of  another  consideration,  which  is  not  repugnant 
to  the  one  mentioned,  may  be  given  to  support  the  deed. 

At  the  same  term,  in  the  case  of  Oliver  vs.  Gray,  J  he  discussed  with 
marked  ability  the  doctrines  of  the  statute  of  limitations,  and  particu- 
larly that  branch  of  it  relative  to  the  nature  and  character  of  the 
acknowledgment  required  to  take  a  case  out  of  the  statute. 

The  Union  Bank  of  Maryland  vs.  Ridgley,§  a  case  which  occupies 
more  than  a  hundred  pages  of  the  report,  presented  some  interesting 
questions  relative  to  the  law  of  corporations,  but  the  decisive  point  in 
the  discussion  seems  to  have  turned  upon  one  or  two  technical  ques- 
tions of  pleading,  the  argument  of  which  shows  the  mind  of  Taney 
to  have  been  as  acute  and  subtle  in  the  analysis  of  what  may  be 

*  1  Harris  &  Gill's  Rep.,  11. 
t  1  Harris  &  Gill's  Rep.,  175. 
t  1  Harris  &  Gill's  Rep.,  204. 
§  1  Han-is  &  Gill's  Rep.,  324. 


ROGER  B.  TANEY.  4.^5 

called  the  metaphysics  of  the  law,  as  the  most  enthusiastic  disciple  of 
Sauuders  or  Chitty  might  wish  to  encounter. 

In  Osgood  vs.  Lewis,*  at  a  term  of  the  Court  in  1829,  ho  had  Wirt 
for  his  antagonist,  and  succeeded  against  that  renowned  advocate  in 
a  discussion  which  laid  open  the  whole  of  that  interesting  branch  of 
legal  ethics  which  embraces  the  doctrines  of  the  law  of  warranty,  and 
of  implied  fraud  or  deceit  in  the  sale  of  chattels. 

The  highly  important  case  of  Pawsons'  Administrators  vs.  Donnell,f 
presenting  some  grave  questions  of  maritime  law,  and  involving  in- 
terests of  great  magnitude,  followed,  in  which  Taney  was  again  op- 
posed by  Wirt.  The  case  was  submitted  on  written  arguWents,  that 
of  Taney,  together  with  his  reply  to  the  brief  of  Mr.  Wirt,  comprising 
sixty  pages  of  the  report,  covers  the  entire  range  of  the  controversy, 
and  thoroughly  exhausts  the  discussion  on  his  side  of  the  question. 

The  following  year  he  distinguished  himself  in  the  argument  of  two 
highly  important  cases  of  Marine  Insurance,  Allegre  Administrators 
vs.  the  Maryland  Insurance  Co  ,|  and  the  Chesapeake  Insurance  Co. 
vs.  Allegro's  Administrators.  §  These  cases  involved  the  examination 
of  a  branch  of  the  law  lying  rather  beyond  the  ordinary  circle  of  pro- 
fessional study,  except  to  the  practicing  advocate  of  a  large  commercial 
city,  and  until  the  removal  of  Mr.  Taney  to  Baltimore,  his  attention 
of  course  had  not  been  very  closely  directed  to  it.  The  result,  how- 
ever, was  highly  honorable  to  his  reputation,  exhibiting  as  it  did  the 
versatility  of  his  genius,  its  comprehensiveness  and  generality,  and  its 
perfect  adaptation  to  the  entire  range  of  legal  investigation  and  forensic 
debate.  It  should  be  added  that  the  whole  argument,  in  both  cases, 
as  shown  by  the  report,  was  uncommonly  able,  Wirt,  Meredith,  and 
Mayer,  being  engaged  with  Taney  in  the  discussion. 

Many  of  the  cases  in  which  Taney  was  engaged  were  long,  intricate, 
and  tedious  chancery  suits,  requiring,  in  their  successful  management, 
not  only  an  exact  and  comprehensive  knowledge  of  the  principles  of 
equity  jurisprudence,  but  a  plodding  perseverance,  a  laborious  h»Ui>try, 
and  a  patient  investigation,  to  which  genius,  in  its  lofty  aspirations, 

*  2  Harris  &  Gill's  Rep.  496. 

t  1  Gill  &  Johnson's  Rep.,  1. 

J  2  Gill  &  Johnson's  Rep.,  136. 

§  2  Gill  &  Johnson's  Rep.,  164. 


476  LIVES   OF  THE  CHIEF^TUSTICES. 

will  rarely  stoop,  and  the  advocate  of  established  reputation  too  often 
regards  as  an  irksome  and  ungracious  task.  As  specimens  of  this 
class  of  cases  the  professional  reader  may  consult  the  following,  argued 
by  Mr.  Taney  at  the  bar  of  the  Court  of  Appeals  :  Hudson  vs.  War- 
ner and  Vance,*  involving  a  discussion  of  the  reciprocal  duties  and 
liabilities  of  mortgagor  and  mortgagee,  and  the  rights  of  creditors  in 
and  to  the  mortgaged  property  ;  McCubbin  vs.  Cromwell,  f  requiring 
an  examination  into  the  nature  and  character  of  chancery  jurisdiction 
and  practice  in  cases  of  dower,  &c.;  Williams  vs.  Carman,  J  presenting 
some  interesting  questions  in  regard  to  equity  jurisdiction  and  practice 
in  grantii^ relief  by  injunction,  &c.,  &c.  For  the  management  of  this 
class  of  cases  Mr.  Taney  seems  to  have  been  peculiarly  well  fitted,  as 
well  by  temperament,  as  by  habit  and  diligent  study.  He  entered 
upon  them  relying  upon  patient  industry,  perseverance,  and  labor, 
rather  than  upon  the  inspirations  of  genius,  and  he  came  out  of  them, 
if  not  always  with  success,  at  least  with  reputation  and  honor. 

To  complete  the  diversified  character  of  his  professional  toils  during 
this  period,  Mr.  Taney,  as  will  be  recollected,  had  upon  his  hands  the 
labors  of  the  Attorney-Generalship  of  Maryland.  Among  a  multitude 
of  private  professional  engagements,  it  not  unfrequently  happened  that 
his  attention  was  occupied  by  important  State  causes,  which  found 
their  way  into  the  Court  of  Appeals.  Thus  we  meet,  in  the  second 
volume  of  Gill  and  Johnson,  the  cases  of  State  of  Maryland  vs.  Way- 
man,  and  Way  man  vs.  The  State,  §  raising  a  very  grave  question  under 
the  Maryland  Constitution,  as  to  the  tenure  of  office  in  that  State  ; 
also  The  State  vs.  Scribner  and  Baker,  ||  presenting  a  technical,  but 
novel  point,  on  an  indictment  for  selling  a  lottery  ticket,  in  a  lottery 
not  authorized  by  the  State  ;  and  various  other  cases,  which  perhaps 
it  would  be  neither  useful  nor  interesting  to  allude  to  in  this  place. 

It  should  be  added,  before  dismissing  this  branch  of  the  subject,  that 
even  his  appointment  as  Attorney-General  of  the  United  States,  did 
not  entirely  withdraw  Mr.  Taney  from  practice  in  the  Maryland  Court 

*  2  Harris  &  Gill's  Rep.,  415. 

t  2  Harris  &  Gill's  Rep.  443. 

J  1  Gill  &  Johnson's  Rep.,  184. 

§  2  Gill  and  Johnson's  Reports,  246. 

||  2  Gill  and  Johnson's  Reports,  254. 


ROGER  B.  TANEY.  477 

of  Appeals.  His  name  appears  as  counsel  in  several  suits  of  the  first 
magnitude  and  importance,  argued  while  he  was  Attorney-General, 
and  a  member  of  the  Cabinet  of  Gen.  Jackson  ;  as  the  case  of  Chal- 
mers vs.  Chalmers,  on  the  equity  side  of  the  Court,  in  1832  ;  that 
of  Clagett  vs'.  Salmon,  the  following  year  ;  and  the  great  insurance 
case  of  Maryland  and  Phenix  Insurance  Company  vs.  Bathurst,  in 
which,  with  Johnson  and  Glenn  for  his  associates,  he  encountered  a 
formidable  array  of  counsel  on  the  other  side,  headed  by  William 
Wirt. 

The  frequent  professional  .encounters  of  the  Chief-Justice  with  Mr. 
Wirt,  have  already  been  noticed.  Wirt  had  lost  none  of  that  lofty 
professional  ambition,  that  intense  and  eager  spirit  of  emulation,  which 
had  characterized  his  efforts  ten  or  fifteen  years  earlier,  when,  entering 
himself  upon  the  Attorney-Generalship,  he  was  accustomed  to  meet 
Pinkney,  at  the  bar  of  Baltimore,  and  in  the  Supreme  Court  at  Wash- 
ington. A  debate  with  Pinkney  he  then  deemed  "exercise  and 
health,"  and  to  fojl  him,  in  fair  fight,  a. crown  so  imperishable,  that  he 
felt  a  kind  of  youthful  pleasure  in  preparing  for  the  combat.*  Wirt 
now  sustained  to  Taiiey  the  same  position  that  Pinkney  had  sustained 
to  Wirt.  He  stood  on  the  topmost  round  of  the  professional  ladder, 
and  had  reached  the  very  summit  of  his  lofty  ambition  ;  and  Taney  could 
with  justice  say  of  his  eminent  rival,  as  Wirt  did  not  hesitate  to  say 
of  Pinkney,  that  his  reputation  was  so  high  as  to  render  it  no  dispar- 
agement in  being  foiled  by  him,  and  great  glory  in  even  dividing  the 
palm.f 

The  perpetual  professional  antagonism  existing  between  them,  never 
engendered  animosity,  or  degenerated  into  personal  ill-feeling,  but  on 
the  contrary,  served  only  to  increase  the  mutual  esteem  and  respect 
which  each  entertained  for  the  talents  of  the  other.  Mr.  Wirt,  though 
in  general  chary  of  his  compliments,  did  not  hesitate  to  do  ample  jus- 
tice to  the  great  abilities  of  his  rival.  On  one  occasion,  in  a  suit  in  the 
United  States  Court,  with  that  rare  felicity  of  expression,  so  charac- 
teristic of  his  elegant  genius  and  classic  taste,  he  alluded  to  Taney, 
who  was  his  opponent  in  the  cause,  as  "  the  man  of  moonlight  mind  7 — 

*  Letter  to  William  Pope,  Oct.  18th,  1818. 
t  Ibid.     2  Kennedy's  Life  of  Wirt,  74. 


4:78  LIVES  OF  THE  CHIEF-JUSTICES. 

I  mean,"  he  added,  "  the  moonlight  of  the  Arctics,  where  you  have  all 
the  light  of  day  without  its  glare .'" 

No  comparison  perhaps  ought  to  be  made  between  these  distin- 
guished advocates.  Their  professional  talents  were  as  diverse  as  their 
manner  at  the  bar,  and  their  style  of  elocution.  Wirt  was  the  polished 
orator,  elegant  and  exact,  both  in  matter  and  manner,  highly  ornate, 
always  warm,  sometimes  impassioned.  Taney,  the  logician,  clear, 
calm,  and  argumentative,  directing  his  simple  and  unostentatious  dis- 
course to  the  reason,  rather  than  the  impulsive  feelings  and  passions. 
His  manner  at  the  bar,  however,  has  been  described  as  highly  im- 
pressive. "  When  his  slow  and  solemn  form  was  seen  rising  in  Court," 
says  an  observer,  "  every  ear  was  open,  and  all  eyes  were  fixed  upon 
the  speaker — the  audience  insensibly  taken  captive,  and  borne  away 
by  the  weight  of  his  argument  and  the  tones  of  his  eloquence.  He 
moved  along  like  the  majestic  Mississippi,  full,  clear,  and  magnificent. 
Whenever  the  late  Mr.  Wirt  was  opposed  to  Mr.  Taney,  he  would 
facetiously  say,  that  he  dreaded  nothing  so  much  ,as  his  '  apostolic 
simplicity.'  So  soft  and  amiable  was  his  deportment,  that  even  amidst 
the  heat  and  turmoil  of  nisi  prius  litigation,  he  was  never  known  to 
offend  the  feelings  of  any  of  his  brethren.  His  conversation  was  never 
roughened  by  austerity  or  pedantry  ;  and  when  his  gallant  bearing 
extorted  from  all  the  most  unfeigned  praise,  he  would  almost  hide 
himself  from  public  admiration,  with  the  unaffected  modesty  of  his 
native  character."* 

The  office  of  Attorney-General  of  the  United  States,  always  filled 
with  commanding  ability,  had  been,  for  the  twenty  years  immediately 
preceding  Taney's  appointment,  adorned  with  the  most  splendid 
talent  which  the  country  has  produced.  Pinkney,  who  held  the  office 
a  little  over  two  years,  resigned  it,  in  1814,  into  the  hands  of  Richard 
Rush. '  That  gentleman,  on  his  appointment  as  Minister  to  England, 
in  1817,  was  succeeded  by  William  Wirt,  whose  classic  intellect  and 
genius,  during  a  period  of  twelve  years,  threw  a  new  lustre  around 
this  dignified  and  responsible  station.  Mr.  Berrian,  of  Georgia,  to 
whose  great  capacity  in  the  legislative,  as  well  as  the  judicial  forum, 
the  whole  country  will  bear  honorable  testimony,  followed  Mr.  Wirt, 
and  held  the  office  two  years,  through  the  sessions  of  1830  and  1831. 
*  "  Southern  Literary  Messenger,"  June,  1838. 


ROGER  B.  TANEY.  479 

To  follow  predecessors  like  these,  and  to  fill  the  sphere  they  had 
occupied,  without  suffering  by  the  comparison,  required  a  mind  of  no 
common  mould,  and  abilities  of  the  very  highest  order.  Mere  respect- 
ability of  talent  would  have  had  occasion  to  esteem  it  a  singular  piece 
of  ill-fortune  that  such  an  honor  should  be  thrust  upon  it,  at  such  a 
time  ;  while  mediocrity  must  have  irretrievably  and  hopelessly  sunk 
at  the  very  threshold. 

The  resignation  of  Mr.  Berrien,  who  retired  with  the  other  members 
of  General  Jackson's  Cabinet,  opened  the  way  for  Taney's  appoint- 
ment to  the  vacant  Attorney-Generalship.  He  came  into  office  on  the 
reconstruction  of  the  Cabinet,  in  June,  1831.  The  new  Cabinet  com- 
prised a  mass  of  intellect,  and  a  collective  strength  and  energy,  never 
surpassed  at  any  period  in  the  history  of  the  government.  Besides 
the  new  Attorney-General,  its  members  were,  Edward  Livingston, 
Secretary  of  State  ;  Louis  McLane,  Secretary  of  the  Treasury ; 
Lewis  Cass,  Secretary  of  War  ;  Levi  Woodbury,  Secretary  of  the 
Navy  ;  and  Amos  Kendall,  Postmaster-General.  Mr.  Duane  subse- 
quently succeeded  to  the  place  of  Mr.  McLane,  in  the  Treasury  De- 
partment, when  the  latter  was  appointed  Secretary  of  State,  on  the 
resignation  of  Mr.  Livingston,  who  was  sent  as  Minister  to  France. 

It  has  been  truly  remarked,  that  the  office  of  Attorney-General  has 
nothing  to  recommend  it  to  an  indolent  man.  Its  incumbent  is,  ex 
offido,  a  member  of  the  Cabinet,  and  his  duties,  prescribed  by  the  law, 
are  "  to  prosecute  and  conduct  all  suits  in  the  Supreme  Court,  in 
which  the  United  States  are  concerned,  and  to  give  advice  and  opi- 
nions upon  questions  of  law,  when  required  by  the  President,  or  when 
requested  by  the  heads  of  any  of  the  departments,  touching  matters 
which  may  concern  their  departments."  These  opinions,  as  Mr. 
Southard  very  correctly  remarks  in  his  eulogy  upon  Mr.  Wirt,  are 
official ;  "  not  merely  persuasive  upon  the  judgment  of  other  officers, 
but,  so  far  as  the  construction  of  the  law  is  concerned,  regarded  as 
binding  ;  and  if  error  be  committed,  the  responsibility  is,  in  a  great 
degree,  taken  from  them  and  cast  upon  him — a  responsibility  by  no 
means  light  to  a  sensitive  and  well-organized  mind."  Mr.  Tanrys 
official  opinions  are  to  be  found  in  the  volume  of  "  Opinions  of  the 
Attorney-Generals,"  published  by  order  of  the  Twenty-sixth  Con- 
They  comprise  nearly  one  hundred  pages  of  the  volume,  and  though 


480  LIVES    OF    THE   CHIEF-JUSTICES. 

generally  brief,  they  are  all  of  them  distinguished  by  that  clearness 
and  perspicuity  which  characterize  the  mind  of  their  author. 

In  the  other  branch  of  his  official  duty,  that  of  prosecuting  and  con- 
ducting, in  the  Supreme  Court,  the  suits  in  which  the  United  States 
were  concerned,  the  record  of  his  labors  during  the  two  years  in 
which  he  held  the  Attorney-Generalship,  is  to  be  found  in  the  sixth 
and  seventh  volumes  of  Peters'  Reports.  This  record  shows  a  great 
number  and  variety  of  cases  argued  by  Mr.  Taney,  in  his  official  cha- 
racter, and  furnishes  ample  testimony  of  his  professional  ability, 
industry,  and  success.  I  shall  not  trespass  upon  the  reader's  patience 
by  attempting  a  review  of  these  cases.  They  embrace,  for  the  most 
part,  controversies  turning  upon  questions  of  a  purely  legal  character, 
and  may  therefore  be  properly  passed  by  without  further  remark.  It 
should  be  said,  however,  in  justice  to  Mr.  Taney,  that  some  of  these 
arguments  were  uncommonly  able,  and  were  noticed  at  the  time  by 
the  bench,  as  well  as  by  his  brethren  of  the  bar,  as  being  among  his 
best  and  happiest  efforts.  This  was  especially  the  case  at  the  session 
of  the  Court  in  1833 — a  session  not  so  remarkable  for  interesting  cases 
and  brilliant  arguments,  as  some  which  had  preceded  it.  "  The  cases 
hitherto  argued,"  writes  Judge  Story,*  "have  been  of  no  general 
interest ;  and  the  arguments  have  not  been  striking.  We  have  how- 
ever had  some  fine  arguments  from  Binney  and  Sargeant,  of  Philadel- 
phia, and  Mr.  Attorney-General  Taney ."f 

•  Letter  to  Judge  Fay,  February  10th,  1833. 

f  Among  the  cases  at  the  session  of  1832,  in  which  the  Attorney-General  dis- 
tinguished himself,  may  be  mentioned  The  United  States  vs.  The  State  Bank  of 
North  Carolina,  6  Peters'  Reports,  29  ;  McLane  vs.  The  United  States,  ibid.  404 ; 
and  The  United  States  vs.  Nourse,  ibid.  470.  The  first  of  these  cases,  one  of  the 
earliest  arguments  of  Taney  after  his  appointment  to  the  Attorney-Generalship, 
laid  open  an  interesting  discussion  relative  to  the  origin  and  nature  of  the  right 
of  priority  of  payment  of  debts  due  to  Government,  and  whether  this  right,  under 
our  system,  as  in  England,  rested  upon  sovereign  prerogative,  or  was  wholly 
founded  on  positive  statute.  The  Court  held,  in  accordance  with  the  reasoning  of 
the  Attorney-General,  that  though  a  statutory,  and  not  strictly  a  prerogative 
right,  yet  it  was  to  be  traced  to  the  same  broad  principles  of  public  policy  which 
governed  the  royal  prerogative,  namely,  the  securing  of  an  adequate  revenue  to 
sustain  the  public  burdens,  and  discharge  the  public  debt,  and  therefore  the  statute 
should  receive  a  fair  and  liberal,  and  not  a  strict  and  narrow  construction. 
Among  the  important  cases  argued  by  the  Attorney-General,  at  the  subsequent 


ROGER    B.   TANEY.  481 

As  a  member  of  the  Cabinet,  and  one  of  the  constitutional  advisers 
of  the  President,  Mr.  Taney  shared  his  full  proportion  of  responsi- 
bility in  that  series  of  strong  and  energetic  measures  which  the  admin- 
istration of  General  Jackson  originated  and  carried  out,  and  which 
make  so  marked  a  figure  in  the  political  history  of  the  country..  The 
nullification  controversy,  the  question  of  the  recharter  of  the  United 
States  Bank,  the  removal  of  the  deposits,  and  other  subjects  of  the 
deepest  moment,  at  that  time,  agitated  the  public  mind,  and  divided 
the  national  councils.  It  is  scarcely  necessary  to  add,  that,  through- 
out all  the  stormy  contests  growing  out  of  these  discussions,  the 
Attorney-General  stood  firmly  and  unflinchingly  by  the  side  of  the 
President,  and  rendered  to  the  measures  of  his  administration  an 
energetic  and  effective  support.  He  was,  from  the  beginning,  a 
decided  and  earnest  opponent  of  the  Bank ;  and  he  cooperated  so 
heartily  with  the  President  in  his  system  of  prompt  and  vigorous 
action  against  that  institution,  as  to  call  down  upon  his  own  head,  not 
the  censure  only,  but  the  active  animosity,  pushed  to  the  verge  of 
proscription,  of  that  powerful  majority  which  then  controlled  the 
Senate  and  opposed  the  administration. 

I  do  not  design  to  trace  fully  the  political  history  of  Mr.  Taney 
during  bis  connection  with  General  Jackson's  Cabinet.  It  was  a 
ptriod  of  stormy  debates,  heated  party  discussions,  and  intense  popu- 
lar excitement.  The  great  question  of  the  day — overriding  and 
absorbing  all  others  for  the  time  being — was  the  Bank  controversy, 
a  controversy  too  memorable  in  the  political  annals  of  the  country  to 
be  soon  forgotten.  -Mr.  Taney  was  reluctantly  drawn  into  it,  and  by 
the  force  of  circumstances,  rather  than  by  any  volition  of  his  ojvn,  was, 
for  a  brief  period,  placed  in  a  position  to  test  fully  the  temper  of  his 
mind  and  the  firmness  of  his  courage.  The  history  and  details  of  this 
controversy,  in  which  Mr.  Taney  acted  a  part  so  prominent  as  to  call 
down  upon  himself  personally  the  bitter  and  unmeasured  denunciations 
of  the  most  eminent  leaders  of  the  opposition,  may  be  consulted  more 
at  large  by  the  reader  in  the  political  annals  of  the  day.  Reminded 
that  I  am  sketching  the  career  of  the  jurist,  and  not  the  politician,  I 

session  of  1833,  may  be  mentioned,  The  United  States  w.  Macdaniel,  7  Peters' 
Reports,  1 ;  Sampeyrac  vs.  The  United  States,  ibid.  222  ;  Barren  vs.  The  Mayor 
and  City  of  Baltimore,  ibid.  243 ;  and  Scholefield  vs.  Eichelberger,  ibid.  586. 
31 


482  LIVES  OF  THE  CHIEF-JUSTICES. 

shall  pass  it  by  with  such  brief  notice  only  as  the  sub'ect  seems  neces- 
sarily to  require. 

The  question  of  the  removal  of  the  deposits  from  the  United  States 
Bank,  arose  while  Mr.  Taney  was  Attorney-General.  We  have  the 
highest  authority  for  the  fact,  that  in  every  stage  of  that  question  he 
had  been  in  favor  of  the  removal ;  so  that  his  conduct,  when  made 
Secretary  of  the  Treasury,  was  the  result  of  his  previous  judgment 
and  convictions  of  duty.*  The  measure,  we  are  assured  on  the  same 
authority,  originated  with  the  President  himself,  and  was  emphatically 
his  own.  Taney,  with  a  single  other  member  of  the  Cabinet,  the 
Postmaster-General,  warmly  approved  it ;  the  rest  were  either  indif- 
ferent to  the  project,  or  opposed  it.f  Mr.  Duane,  the  Secretary  of 
the  Treasury,  absolutely  refused  to  carry  out  the  measure,  whereupon 
the  President,  with  characteristic  promptness,  decision,  and  independ- 
ence, removed  him  from  office,  and  appointed  Mr.  Taney  in  his  place. 
Though  he  had  neither  courted  nor  desired  the  post,  he  did  not  shrink 
from  its  acceptance,  or  endeavor  to  shun  the  responsibility.  His  entry 
upon  the  office  at  such  a  time,  and  under  such  circumstances,  with  the 
certainty  of  making  himself  a  prominent  mark  for  the  arrows  of  the 
opposition,  and  staking,  as  he  did,  his  reputation  and  character  upon 
the  issue  of  the  controversy,  evinced  not  only  a  fearless  independence, 
and  firmness  of  purpose,  but  a  generous  devotion  and  disinterested 
friendship,  which  no  one  could  more  fully  appreciate,  or  was  more 
ready  to  acknowledge,  than  General  Jackson  himself.  In  his  letter  to 
Mr.  Taney,  when  the  latter  retired  from  the  office  of  Secretary  of  the 
Treasury,  he  expresses  these  acknowledgments,  in  language  whose 
warmth  and  earnestness  attest  its  genuine  sincerity  :  "Knowing  that 
such  a  station  was  not  desired  by  you,"  says  the  President,  alluding 
to  the  Attorney-Generalship,  "  and  was  in  opposition  to  your  course 
of  life,  I  could  not  but  feel  grateful  to  you,  when,  in  compliance  with 
my  invitation,  you  exchanged  the  independence  of  your  professional 
pursuits  for  the  labors  and  responsibilities  of  the  office  of  Attorney- 
General  of  the  United  States.  This  sentiment  was  greatly  and 
deservedly  increased  during  the  last  year,  when  becoming  acquainted 
with  the  difficulties  which  surrounded  me,  and  with  my  earnest  desire 

*  Senator  Benton's  Thirty  Years'  View,  p.  414. 
t  Ibid. 


ROGER  B.  TANEY. 


483 


to  avail  myself  of  your  services  in  the  Treasury  Department,  you 
generously  abandoned  the  duties  and  avocations  to  which  your  Hfe 
had  been  devoted,  and  encountered  the  responsibility  of  carrying  into 
execution  those  great  measures  which  the  public  interest,  and  the  will 
of  the  people,  alike  demanded  at  our  hands.  For  the  prompt  and  dis- 
interested aid  thus  afforded  me,  at  the  risk  of  personal  sacrifices,  which 
were  then,  probably,  and  which  have  now -been,  realized,  I  feel  that 
I  owe  you  a  debt  of  gratitude  and  regard  which  I  have  not  the  power 
to  discharge."* 

The  appointment  of  Mr.  Taney  to  the  Secretaryship  of  the  Treas- 
ury, was  made  in  September,  1833.  Mr.  Benjamin  F.  Butler,  of  New 
York,  was  selected  to  succeed  him  as  Attorney-General.  On  the  22d 
of  the  same  month,  was  issued  the  famous  order,  signed  by  the  new 
Secretary  of  the  Treasury,  for  the  removal  of  the  deposits  from  the 
Bank — or  more  correctly  speaking,  directing  the  collectors  of  revenue 
thereafter  to  cease  making  their  deposits  in  the  Bank,  leaving  the 
amount  actually  in  it  to  be  drawn  out  at  intervals,  and  in  different 
sums,  according  to  the  course  of  the  government  disbursements.  The 
measure  was  at  once  assailed  by  the  opposition  press  with  rancorous 
vehemence  and  acrimony  ;  and  the  attack  thus  commenced  was  trans- 
ferred to  the  legislative  forum  at  the  opening  of  the  celebrated  "  Panic 
session"  of  Congress,  in  December,  1833. 

The  day  after  the  meeting  of  Congress,  the  Secretary  of  the  Trea- 
sury communicated  his  reasons  for  the  removal  of  the  deposits,  in  an 
able  and  luminous  report,  which  covered  the  entire  ground  of  the  con- 
troversy. The  propriety  and  necessity  of  the  act  were  placed  mainly 
on  the  ground  of  the  misconduct  of  the  Bank,  and  the  insecurity  of 
the  public  revenue  placed  in  its  keeping.  As  was  to  have  been  ex- 
pected, the  report  called  out  prompt  action  in  the  Senate,  which  then 
contained  a  decisive  majority  against  the  President  and  his  measures. 
Mr.  Clay  took  the  initiative  in  this  action.  Soon  after  the  commence- 
ment of  the  session,  he  called  the  attention  of  the  Senate  to  the  report 
of  the  Secretary,  and  submitted  two  resolutions  on  the  subject.  One 
of  these  was  a  resolution  of  censure  upon  the  action  of  the  President ; 
the  other  declared  the  reasons  assigned  by  the  Secretary  of  the  Trea- 
sury, to  be  "  unsatisfactory  and  insufficient."  After  a  protracted  and 
*  46  Nilcfc'  Register,  p.  :5'26. 


484:  LIVES  OF  THE  CHIEF-JUSTICES. 

animated  discussion,  in  which  all  the  leading  members  of  the  Senate 
took  part,  the  resolution  was  finally  passed,  on  the  5th  April,  1834, 
by  nearly  a  strict  party  vote,  twenty-eight  in  the  affirmative,  to  eigh- 
teen in  the  negative.  Ou  the  same  day,  the  famous  resolution  of 
censure  on  the  conduct  of  General  Jackson,  subsequently  expunged 
from  the  Journal  by  order  of  the  Senate,  was  carried  by  a  vote  of 
twenty-six  to  twenty.* 

The  passage  of  these  resolutions,  and  the  unusual  degree  of  obloquy 
which  had  been  cast  upon  Mr.  Taney  during  the  course  of  the  debate, 
indicated  pretty  clearly  the  temper  of  the  Senate,  and  the  probable 
result  of  his  nomination  before  that  body.  Anticipating  this  result, 
the  President  delayed  sending  in  his  nomination  until  near  the  end  of 
the  session.  In  the  mean  time,  in  obedience  to  the  resolution  of  the 
Senate,  the  Secretary  prepared  and  sent  in  a  carefully  digested  and 
elaborate  report  upon  the  state  of  the  finances.  The  report,  "  replete 
with  plain  facts  and  luminous  truths,"  as  Mr.  Benton  expressed  it,  was 
not  apparently  what  the  majority  of  the  Senate  had  expected,  for, 
instead  of  showing  a  financial  decline  and  embarrassment  of  the  gov- 
ernment resources,  it  disclosed,  notwithstanding  "the  Bank  panic" 
was  then  at  its  height,  an  increase  in  every  branch  of  the  public  reve- 
nue. Mr.  Webster  attempted  to  arrest  the  reading  of  the  report,  and 
moved  its  reference  to  the  Finance  Committee  ;  but  the  minority  were 
determined  that  it  should  go  forth  to  the  country,  and  the  reading  was 
insisted  on.  "  It  is  not  what  was  expected,"  said  Mr.  Benton,  in  the 
course  of  a  powerful  speech  on  the  subject ;  "  but  it  is  what  is  true, 
and  what  will  rejoice  the  heart  of  every  patriot  in  America.  A  pit 
was  dug  for  Mr.  Taney  ;  the  diggers  of  the  pit  have  fallen  into  it ; 

*  The  yeas  and  nays  on  the  resolution  declaring  the  reasons  of  the  Secretary 
of  the  Treasury  unsatisfactory  and  insufficient,  are  as  follows : — 

YEAS.— Messrs.  Bibb,  Black,  Calhoun,  Clay,  Clayton,  Ewing,  Frelinghuysen, 
Hendricks,  Kent,  King  (of  Georgia),  Knight,  Leigh,  Mangum,  Naudain, 
Poindexter,  Porter,  Prentiss,  Preston,  Robbins,  Silsbee,  Smith,  Southard, 
Sprague  Swift,  Tomlinson,  Tyler,  Waggaman,  Webster. 

NATS.— Messrs.  Benton,  Brown,  Forsyth,  Grundy,  Hill,  Kane,  King  (of  Ala- 
bama), Linn,  McKean,  Moore,  Morris,  Robinson,  Shepley,  Tallmadge,  Tip- 
ton,  White,  Wilkins,  Wright. 

On  the  passage  of  the  resolution  of  censure  upon  the  President,  Mr.  Hendricks 
and  Mr.  King,  of  Georgia,  voted  with  the  minority. 


ROGER   B.  TANEY.  4.55 

the  fault  is  not  his  ;  and  the  sooner  they  clamber  out  the  better  for 
themselves.  The  people  have  a  right  to  know  the  contents  of  this 
report,  and  know  them  they  shall ;  and  if  there  is  any  man  in  this 
America,  whose  heart  is  so  constructed  as  to  grieve  over  the  prosperity 
of  his  country,  let  him  prepare  himself  for  sorrow  ;  for  the  proof  is 
forthcoming,  that  never,  since  America  had  a  place  among  nations, 
was  the  prosperity  of  the  country  equal  to  what  it  is  at  this  day  !"* 

The  report  of  the  Secretary  was  communicated  to  the  Senate  about 
the  middle  of  June.  On  the  23d  of  that  month  his  nomination  was 
sent  in,  and  the  next  day  he  was  rejected  by  the  same  majority  which 
had  declared  his  "  reasons  "  for  the  removal  of  the  deposits  unsatisfac- 
tory— eighteen  to  twenty-eight,  f  The  Senate  also  refused  to  confirm 
the  nomination  of  Mr.  Stevenson,  Speaker  of  the  House,  as  Minister 
to  England.  "These  results,"  says  the  'Weekly  Register,'  "were 
unanimously  expected.  The  Senate  had  already  pronounced  its  judg- 
ment on  Mr.  Taney  in  declaring  that  his  reasons  assigned  for  the 
removal  of  the  deposits  were  insufficient." 

Mr.  Taney  immediately  placed  his  resignation  in  the  hands  of  the 
President,  and  soon  after  returned  to  Baltimore.  His  entrance  into 
that  city  had  rather  the  appearance  of  a  triumph  than  of  a  defeat. 
Escorted  by  a  numerous  cavalcade  to  the  Columbian  Gardens,  which 
had  been  previously  arranged  for  his  reception,  he  there  met  a  large 
assembly  of  his  friends  and  the  citizens  of  Baltimore,  whom  he  ad- 
dressed in  vindication  of  his  character  and  conduct.  A  public  dinner 
was  given  to  him  soon  afterwards  at  the  same  place,  at  which  Mr. 
Benton,  of  the  Senate,  and  Mr.  Allen,  of  the  House  of  Representa- 
tives, were  present.  Nor  were  these  demonstrations  of  approval  con- 
fined to  the  city  of  Baltimore.  They  were  manifested  elsewhere,  and 
indeed  all  over  the  State  of  Maryland.  On  the  6th  of  August  he 
was  entertained  at  a  public  dinner  by  a  numerous  assemblage  of  his 
old  neighbors  and  friends  of  Frederick,  where  he  had  so  long  resided. 
In  the  deeply  impressive  address  which  he  made  on  that  occasion — 

*  Senator  Beaton's  Thirty  Years'  View,  pp.  462,  463. 

t  Though  the  majority  was  tho  eame,  there  was  a  trifling  alteration  in  tho 
character  of  the  vote  :  thus,  Mr.  Hendricks,  of  Indiana,  and  Mr.  King,  of  Georgia, 
who  on  the  former  occasion  had  voted  with  the  majority,  now  voted  in  favor  of 
confirmation.  Mr.  McKean  djd  not  vote,  aud  Mr.  Moore  voted  against  the  cou- 
firtuation. 


4:86  LIVES  OF  THE  CHIEF-JUSTICES. 

speaking  of  his  rejection  by  the  Senate,  of  the  studied  defamation 
which  had  been  heaped  upon  him,  and  of  the  ultimate  vindication  of 
his  character  from  the  aspersions  of  his  opponents — he  beautifully 
alluded  to  his  former  residence  and  associations  in  Frederick  : — 
"  Having,  as  I  have  already  said,  had  no  connexion  until  recently  with 
the  General  Government,  I  was  altogether  unknown  to  the  great 
body  of  the  citizens  of  the  other  States,  and  cannot,  therefore,  in  re- 
ply to  the  assaults  made  upon  me,  appeal  to  their  knowledge  of  my 
principles  and  conduct.  But  in  Maryland  it  is  othewise.  Born  in 
the  State,  my  life  has  been  passed  in  the  midst  of  its  citizens,  until 
age  is  now  coming  upon  me.  To  them  I  can  confidently  appeal,  for 
they  have  known  me  from  my  childhood.  To  the  citizens  who  now 
surround  me,  I  can  still  more  confidently,  for  among  them  I  passed 
twenty-two  years  of  the  prime  of  my  life,  taking  an  active  part  during 
all  that  time  in  their  public  concerns.  It  is  from  the  people  of  Mary- 
laud  that  the  citizens  of  other  States  must  in  a  great  measure  learn 
my  character  and  my  principles — and  of  none  more  justly  can  the  in- 
quiry be  made  than  of  the  citizens  of  this  county — who  have  so  long 
and  so  intimately  known  me." 

In  a  speech  delivered  by  Mr.  Tancy  at  Elkton,  on  the  4th  Septem- 
ber, 1834,  at  a  public  dinner  given  to  him  by  the  Jackson  Republicans 
of  Cecil  county,  he  took  occasion  very  fully  to  vindicate  his  own  con- 
duct, and  to  repel  the  assaults  which  had  been  made  upon  him. 
Some  recent  expressions  of  Mr.  Webster,  who,  in  a  late  public  address, 
had  alluded  to  Mr.  Taney  as  the  "  pliant  instrument "  of  the  Presi- 
dent, called  out  from  him  on  that  occasion  a  sharpness  of  reproof  and 
a  severity  of  language  which  he  was  not  often  accustomed  to  use. 
"  It  is  well  understood,"  he  remarks,  "that  when  my  nomination  was 
before  the  Senate  for  their  decision,  no  charge  was  brought  against 
me — not  a  word  of  accusation  was  uttered,  and  I  was  rejected  by  a 
silent  vote.  If  there  was  supposed  to  be  anything  in  my  character 
and  conduct  which  justified  my  rejection,  then  was  the  time  to  have 
brought  it  forward.  The  charge  could  then  have  been  investigated. 
But  this  was  not  done.  And  I  had,  therefore,  a  right  to  expect  that 
no  senator  who  had  given  a  silent  vote  for  my  rejection,  would,  after 
the  close  of  the  session,  follow  me,  with  the  spirit  of  hostility,  into 
private  life.  In  one  instance,  and  but  one,'  as  far  as  my  knowledge 


ROGER  B.  TANEY.  4.3  f 

extends,  has  this  expectation  been  disappointed.  And  I  find  that  at  a 
public  dinner  at  Salem,  some  time  ago,  Mr.  Webster  of  the  Senate 
took  occasion  to  speak  of  me  as  the  '  pliant  instrument '  of  the  Presi- 
dent, ready  to  do  his  bidding."  Mr.  Taney  then  meets  and  answers 
the  imputations  thrown  out  by  Mr.  "Webster  ;  and,  having  fully  re- 
plied to  him,  and  corrected  him  in  some  of  his  statements  of  facts,  lie 
makes  the  following  tart  and  caustic  personal  application.'  "  Xeither 
my  habits  nor  my  principles  lead  me  to  bandy  terms  of  reproach  with 
Mr.  Webster  or  any  one  else.  But  it  is  well  known  that  he  has  found 
the  Bank  a  profitable  client,  and  I  submit  to  the  public,  whether  the 
facts  I  have  stated  do  not  furnish  ground  for  believing  that  he  has 
become  its  '  pliant  instrument,'  and  is  prepared  on  all  occasions  to  do 
its  bidding,  whenever  and  wherever  it  may  choose  to  require  him.  In 
the  situation  in  which  he  has  placed  himself  before  the  public,  it  would 
far  better  become  him  to  vindicate  himself  from  imputations  to  which 
he  stands  justly  liable,  than  to  assail  others."  * 

Attempted  political  proscription  rarely  fails  to  re-act  upon  its 
authors  and  to  advance  the  fortune  of  the  person  unjustly  proscribed. 
Two  or  three  years  before  this  period  Mr.  Van  Buren  had  been  reject- 
ed by  the  Senate  as  Minister  to  England  ;  and  now,  as  Vice-Presi- 
dent of  the  United  States,  he  was  the  presiding  officer  in  that  very 
body  which  had  condemned  him.  Mr.  Taney  had  been  rejected  by  the 
same  body,  and  his  name  was  now  mentioned  in  some  quarters  for  the 
Vice-Presidency,  in  connexion  with  that  of  Mr.  Van  Buren  for  the 
Presidency.  It  is  by  no  means  improbable  that  such  might  have  been 
the  result  of  the  condemnation  of  Mr.  Taney  by  the  Senate,  had  it«ot 
been  for  his  entire  withdrawal  from  politics  on  being  nominated  by 
the  President  to  fill  a  position  more  congenial  to  his  tastes  and  habits, 
and  the  pursuits  and  studies  of  his  whole  previous  life. 

In  January,  1835,  the  venerable  Gabriel  Duvalf  one  of  the  Asso- 

*  The  entire  speech  is  published  in  Niles'  Register.  Vol.  XLVII.  pp.  106- 
108. 

t  GABRIEL  DUVAL,  an  eminent  lawyer  of  Maryland,  was  appointed  by  President 
Madison  an  Associate-Justice  of  the  Supreme  Court  in  the  yi-ar  1  SI  1.  in  place  of 
Judge  Chase.    Judge  Duval  had  been  long  and  honorably  known  to  th« 
land  bar.    In  April,  1796,  on  the  promotion  of  Judge  Goldsborough  to  1 
Judge   of  the  General  Court,  Mr.  Uuval  was  appointed  one  of  the  Associate-Jus- 


488  LIVES  OF  THE  CHIEF-JUSTICES. 

date-Justices  of  the  Supreme  Court  of  the  United  States,  resigned  his 
office  in  consequence  of  the  infirmities  of  age,  and  President  Jackson 
immediately  appointed  Mr.  Taney  to  supply  the  vacancy.  The  great 
legal  ability  and  high  professional  character  of  Mr.  Taney  rendered 
this  appointment  eminently  and  obviously  proper.  Since  the  death  of 
Wirt  he  stood  confessedly  without  a  rival  at  the  Maryland  bar.  An 
unblemished  personal  as  well  as  professional  reputation,  and  a  charac- 
ter whose  purity  no  man,  not  blinded  by  political  animosity,  could  ven- 
ture to  assail,  might,  it  was  thought,  rise  above  all  political  consider- 
ations, and  disarm  even  the  opposition  of  party  spirit  itself.  But  it 
was  not  so.  The  majority  of  the  Senate  declined  to  entertain  or  act 
upon  the  nomination,  for  the  reason,  as  was  alleged  at  the  time,  of  the 
contemplated  new  arrangement  of  the  judicial  system  as  to  the  cir- 
cuits. At  the  last  moment  of  the  session  the  subject  was  brought  up 
and  indefinitely  postponed,  a  vote  which  was  no  doubt  intended,  and 
was  understood,  as  equivalent  to  a  rejection. 

tices.  This  place  he  retained  until  1802,  when  he  accepted  the  Comptrollership 
of  the  Treasury  of  the  United  States.  On  the  passage  of  the  act  of  the  Maryland 
Legislature,  in  1806,  abolishing  the  General  Court,  and  re-organizing  the  Court  of 
Appeals  and  the  County  Courts,  Judge  Duval  was  successively  appointed  to  the 
office  of  Chancellor,  Judge  of  the  Court  of  Appeals,  and  Chief-Judge  of  the 
County  Courts  of  the  first  Judicial  District,  all  of  which  stations  he  declined. 
Accepting  the  appointment  of  Associate-Justice  of  the  Supreme  Court  of  the 
United  States  in  1811,  he  continued  in  the  discharge  of  the  duties  of  this  place 
for  a  period  of  nearly  a  quarter  of  a  century,  when,  resigning  his  seat  on  account 
of  the  infirmities  of  age,  he  was  succeeded  by  Philip  P.  Barbour.  on  the  15th 
March,  1836 

Judge  Duval  died  in  1844.  His  colleague,  Judge  Story,  presiding  at  the  ensu- 
ing session  of  the  Court  in  the  temporary  absence  of  the  Chief-Justice,  bears  the 
following  honorable  testimony  to  his  worth  and  virtues:  "His  urbanity,  his 
courtesy,  his  gentle  manners,  his  firm  integrity  and  independence,  and  his  sound 
judgment,  so  eloquently  and  truly  stated  at  the  bar,  are  entirely  concurred  in  by 
all  of  us  who  have  had  the  pleasure  of  knowing  him.  His  revolutionary  and 
patriotic  acts  belong  to  the  general  history  of  his  country.  For  myself,  having 
had  the  honor  of  an  appointment  to  this  bench  on  the  same  day  he  received  his, 
we  were  during  his  whole  judicial  life,  for  about  a  quarter  of  a  century,  cotempo- 
raries,  although  he  was  advanced  in  years  far  beyond  myself ;  I  can,  therefore, 
bear  my  own  testimony  to  the  justice  of  the  eulogium  which  has  been  pronounced 
at  the  bar  upon  his  social  and  judicial  qualities.  They  will  long  be  cherished  in 
our  memories  with  grateful  satisfaction." 


ROGER  B.  TANEY  439 

Thus  matters  stood  when  Chief-Justice  Marshall  died,  in  the  sum- 
mer of  1835.  As  had  been  the  case  on  previous  occasions,  much  specu- 
lation was  indulged  in  relative  to  the  succession.  From  cotemporary 
newsp'apers  I  find  the  names  of  Judge  M'  Lean,  Henry  St.  George 
Tucker,  President  of  the  Virginia  Court  of  Appeals,  and  other  distin- 
guished citizens,  besides  that  of  Taney,  mentioned  for  the  office.  But 
the  President  "  kept  his  own  counsel,"  as  Washington  had  done,  and 
delayed  making  the  appointment  until  the  next  meeting  of  Congress. 
In  the  mean  time  the  rumor  that  Mr.  Taney  had  been,  or  was  about 
to  be,  appointed  during  the  recess,  called  out  some  sharp  comments 
from  the  press.  I  find  in  the  National  Intelligencer  a  communication 
signed  "  Causidicus,"  in  which  the  writer,  after  alluding  to  the  fact  that 
an  appointment  in  the  recess  of  the  Senate  would  be  temporary  only, 
and  held  at  the  will  of  the  Senate,  or  of  the  President,  who  might 
change  his  mind,  goes  on  to  remark  :  "No  man  of  delicacy  would  act 
as  Judge  under  such  an  appointment.  I  have  a  high  respect  for  Mr. 
Taney  as  a  man  and  a  lawyer,  and  do  not  know  whether  in  the  present 
state  of  parties,  we  can  expect  to  obtain  a  better  Chief-Justice,  but  I  do 
not  believe  he  will  take  upon  himself  the  functions  of  a  Judge  of  the  Su- 
preme Court  until  his  nomination  shall  have  been  confirmed  by  the 
Senate."  This  was  certainly  a  very  singular  suggestion.  Just  forty 
years  before,  Washington  had  appointed  Judge  Rutledge,  in  the  recess 
of  the  Senate,  under  precisely  similar  circumstances,  and  no  one  had 
ventured  to  suggest  that  delicacy  required  him  to  abstain  from  taking 
his  seat  for  that  cause,  and  until  after  his  confirmation  by  the  Senate. 
But  whatever  might  have  been  the  propriety  of  a  nomination  in  the 
recess,  it  was  not  made,  and  the  consequence  was  that  the  Supreme  Court 
was  left  without  a  Chief-Justice  during  its  session  in  the  winter  of  1836. 

On  the  28th  December,  1835,  President  Jackson  sent  in  to  the  Senate 
the  name  of  ROGER  B.  TANEY,  for  the  office  of  Chief-Justice  of  the 
Supreme  Court,  and  the  name  of  PHILIP  P.  BARBOUR,  of  Virginia,  for 
the  office  of  Associate-Justice.  Notwithstanding  the  political  com- 
plexion of  the  Senate  had  changed,  the  nomination  encountered  a 
warm  and  vigorous  opposition.  At  the  head  of  this  opposition  stood 
the  acknowledged  chiefs  of  their  parly,  Messrs.  Clay  and  \V. 
The  former  of  these,  in  particular,  with  the  impulsive  ardor  of  his 
nature,  labored  zealously  to  defeat  the  nomination,  and  signalized  his 


490  LIVES  OF  THE  CHIEF-JUSTICES. 

assaults  upon  the  nominee  by  an  uncommon  degree  of  asperity  and 
bitterness  of  remark.  I  am  informed  by  an  eminent  member  of  the 
Maryland  bar,*  who,  though  of  opposite  politics,  was  at  the  time 
warmly  in  favor  of  the  confirmation  of  Mr.  Taney,  that  Mr.  Clay,  not 
many  years  after,  with  the  open  and  generous  frankness  of  his  nature, 
made  the  amende,  honorable  to  the  Chief-Justice,  in  a  manner  credit- ' 
a'ble  alike  to  the  characters  of  both.  He  frankly  admitted  to  Judge 
Taney,  that  at  the  time  of  the  nomination,  he  had  used  some  harsh 
expressions,  and  made  many  unkind  remarks  in  regard  to  him,  which 
he  sincerely  regretted,  adding,  with  a  cordial  shake  of  the  hand,  that 
he  regarded  him  as  a  worthy  successor  of  Chief-Justice  Marshall.  It 
would  have  been  difficult  even  for  Mr.  Clay  to  have  framed  a  higher 
or  more  delicate  compliment. 

The  nomination  of  Mr.  Taney  was  not  acted  upon  until  the  15th 
March,  1836,  when  it  was  ratified  by  a  majority  of  fourteen  votes.-}" 
Soon  after,  he  was  sworn  into  office  by  Judge  Glenn,  District-Judge  of 
Maryland.  He  took  his  seat,  for  the  first,  on  the  bench,  in  the  begin- 
ning of  the  following  month,  April,  at  a  Circuit  Court  held  in  Balti- 
more, for  the  District  of  Maryland.  On  this  occasion  he  made  some 
brief  remarks  to  the  Grand  Jury,  in  place  of  the  customary  charge, 
and  for  the  purpose  of  giving  his  reasons  for  the  course  he  intended  to 
pursue  in 'dispensing  with  anything  of  the  kind  thereafter  :  "  He  had 
a  few  words  to  say  to  them,"  he  remarked,  "not  so  much  in  compli- 
ance with  the  usage  which  had  prevailed,  of  charging  grand  juries,  of 
which  he  disapproved,  and  would  in  future  dispense  with  altogether  ;J 

*  The  late  Attorney-General  of  the  United  States,  Mr.  Reverdy  Johnson, 
t  The  following  is  the  vote  :— 

AYES. — Messrs.  Benton,  Brown,  Buchanan,  Cuthbert,  Davis,  Ewing  (Illinois), 
Grundy,  Hendricks,  Hill,  Hubbard,  King  (Alabama),  King  (Georgia),  Linn, 
McKean,  Moore,  Morris,  Nicholas,  Niles,  Prentiss,  Rives,  Robinson,  Ruggles, 
Shepley,  Swift,  Tallmadge,  Tipton,  Walker,  Wall,  Wright— 29. 
NAYS.— Messrs.  Black,  Calhoun,  Clay,  Crittenden,  Ewing  (Ohio),  Leigh,  Man 
gum,  Naudain,  Porter,  Preston,  Robbins,  Southard,  Tomlinson,  Webster. 
White— 15. 

Messrs.  Moore  and  Prentiss,  who  now  voted  aye,  had  voted  against  Mr.  Taney's 
confirmation  as  Secretary  of  the  Treasury. 

|  This  determination  was  constantly  adhered  to  by  the  Chief-Justice  from  thai 
time  onward.  It  has  never  been  his  practice  to  deliver  charges  to  the  grand 
juries  cuipanuelcd  in  his  courts. 


ROGER  B.  TANEY.  491 

but  more  for  the  purpose  of  giving  his  reasons  for  departing  from  it, 
and  his  present  charge  would  necessarily  be  brief.  He  thought  the 
Court  should  enter  at  once  with  promptness  and  industry  upon  the 
discharge  of  its  duties,  disconnected  from  all  unnecessary  forms.  The 
age  had  passed  by,  which  called  for  particular  instructions  from  the 
Court ;  the  public  mind  had  become  enlightened,  and  the  intelligence 
of  juries  was  adequate  to  the  discharge  of  their  duties.  The  District- 
Attorney  was  ready  to  counsel  them  in  all  matters  of  law.  It  was 
unnecessary  that  the  Court  should  enter  the  wide  field  of  jurisprudence, 
when  the  attention  of  the  jury  would  be  called  but  to  few  infractions 
of  the  criminal  laws  of  the  land."  The  Chief-Justice  then  advised  the 
jury,  that  it  was  their  duty  carefully  to  examine  the  testimony  laid 
before  them,  and  find  no  bill,  except  upon  the  clear  conviction  of  the 
guilt  of  the  accused. 

Judge  Taney  took  his  seat  on  the  bench  of  the  Supreme  Court  in 
January,  1837.  Judge  Barbour,  who  had  also  bepn  confirmed  by  the 
Senate,  took  his  seat  at  the  same  time.  There  were  then  before  the 
Court  three  cases,  of  very  great  interest,  each  of  them  involving  the 
question  of  the  validity  of  a  State  law,  and  of  course  opening  the 
whole  field  of  discussion  as  to  the  conflicting  powers  of  the  State  and 
general  governments.  These  cases  had  been  discussed,  but  not  decided, 
in  Chief-Justice  Marshall's  time,  and  the  opinion  of  that  eminent  jurist 
seems  to  have  been,  in  each  case,  that  the  State  law  was  repugnant  to 
the  Constitution  of  the  United  States,  and  void.  In  this  opinion,  Mr. 
Justice  Story,  who  dissented  from  the  final  judgment  of  the  Court,  in 
all  three  of  the  cases,  concurred.  No  little  curiosity  was  manifested 
in  regard  to  these  cases,  by  the  profession,  as  well  as  by  the  public 
men  of  that  time,  who  had  watched  the  current  of  constitutional  de- 
cisions in  the  Supreme  Court.  The  great  point  of  interest  and  anxiety 
seemed  to  be  to  know  whether  the  Court,  as  then  constituted, 
would  apply,  by  judicial  construction  of  the  Constitution,  the  same 
strict  limits  to  the  powers  claimed  to  be  exercised  by  the  States,  as 
had  been  established  in  Marshall's  time.  The  public,  however,  were 
not  kept  long  in  suspense.  Judgment  was  rendered  in  all  thru1  cases, 
sustaining  the  State  laws. 

The  first  of  these  cases  was  from  New  York,  and  is  reported  under 


4-92  LIVES  OF  THE  CHIEF-JUSTICES. 

the  title  of  City  of  New  York  vs.  Miln.*  The  opinion  of  the  Court 
was  pronounced  by  Judge  Barbour,  and  was  to  the  effect,  that  the 
Legislature  of  New  York  might,  without  violating  the  Constitution 
of  the  United  States,  pass  an  act  concerning  passengers  arriving  in 
vessels  in  the  port  of  New  York,  requiring  the  master  of  every  vessel 
arriving,  under  certain  penalties,  to  make  a  report,  in  writing,  respect- 
ing his  passengers,  within  twenty-four  hours  after  his  arrival.  It  was 
argued  by  counsel  in  this  case,  and  so  Mr.  Justice  Story  appears  to 
have  thought,  in  his  dissenting  opinion,  that  the  principles  of  the  case 
fell  directly  within  the  decisions  in  Gibbons  vs.  Ogden,  and  Brown  vs. 
State  of  Maryland,  heretofore  noticed.f  The  majority  of  the  Court, 
however,  including  the  Chief-Justice,  were  of  a  contrary  opinion, 
regarding  the  act  of  New  York,  as  not  a  regulation  of  commerce,  but 
of  police,  and  that  therefore  it  was  passed  in  the  exercise  of  a  power 
which  rightfully  belonged  to  the  State.  Persons,  it  was  said,  are  not 
the  subjects  of  commerce;  and,  not  being  imported  goods,  they  do  not 
fall  within  the  reasoning  founded  upon  the  construction  of  a  power 
given  to  Congress  to  regulate  commerce,  and  the  prohibition  of  the 
States  from  imposing  a  duty  on  imported  goods.  J 

*  11  Peters'  Reports,  102. 

t  Ante,  pages  412,  424. 

J  This  doctrine  is  controverted  by  the  cases  of  Smith  vs.  Turner,  and  Norris  vs. 
City  of  Boston,  which  I  shall  presently  notice,  reported  in  the  seventh  volurae  of 
Howard's  Reports.  In  these  cases,  which  attracted  so  much  attention  and  interest 
at  the  time,  the  discussion  seems  to  have  passed  from  the  bar  into  the  consulta- 
tion-room of  the  Judges,  and  resulted  finally  in  declaring,  by  a  vote  of  five  judges 
to  four,  that  a  State  law  imposing  taxes  upon  the  masters  of  vessels  bringing  pas- 
sengers and  emigrants  into  the  ports  of  such  States,  was  contrary  to  the  Constitu- 
tion of  the  United  States,  and  void,  because  the  exclusive  power  to  regulate  com- 
merce is,  by  the  Constitution,  in  Congress ;  and  the  term  commerce,  comprehends 
the  intercourse  of  persons  or  passengers.  Mr.  Justice  Wayne,  who  upon  this  ques- 
tion sided  with  the  majority  of  the  Court,  gives  a  very  interesting  history  of  the 
discussion  in  the  consultation-room,  and  the  conflicting  views  of  the  Judges  in  the  • 
case  of  New  York  vs.  Miln,  though  his  recollections  of  some  of  the  facts  differs 
from  that  of  the  Chief-Justice,  as  stated  by  him  in  his  dissenting  opinion.  Judge 
Wayne  avers  that  nothing  but  the  conclusion  arrived  at  by  Judge  Barbour  in 
New  York  vs.  Miln,  was  the  judgment  of  the  Court,  namely,  that  the  New  York 
law  "  does  not  assume  to  regulate  commerce  between  the  port  of  New  York  and 
foreign  ports,"  and  was  therefore  constitutional.  In  other  words,  that  it  was  a 
mere  police  regulation,  but  that  the  Court  did  not  concur  in  the  proposition  of 


ROGER  B.  TANEY.  493 

Briscoe  vs.  The  Bank  of  the  Commonwealth  of  Kentucky,*  was  the 
next  of  these  cases.  The  validity  of  the  act  of  the  Kentucky  Legis- 
lature, establishing  a  bank  "  in  the  name  and  behalf  of  the  Common- 
wealth of  Kentucky,"  was  here  drawn  in  question,  under  the  constitu- 
tional provision  which  restrains  the  States  from  emitting  bills  of  credit. 
The  case  had  been  formerly  argued  before  the  Court,  and  Mr.  Justice 
Story  says,  that  a  majority  of  the  Judges  who  then  heard  it,  includ- 
ing Chief-Justice  Marshall,  were  decidedly  of  the  opinion  that  the  act 
of  Kentucky  was  unconstitutional  and  void,  and  that  it  fell  precisely 
within  the  principle  adjudged  by  the  case  of  Craig  vs.  The  State  of 
Missouri,  in  Chief-Justice  Marshall's  time.f  A  reargument  was 
ordered,  and  the  case  was  again  discussed  with  consummate  learning 
and  ability,  Henry  Clay  being  one  of  the  counsel  in  behalf  of  the 
validity  of  the  Kentucky  law,J  followed  by  that  able  and  accom- 
plished lawyer,  the  late  Senator  Southard,  of  New  Jersey,  in  opposi- 
tion. The  judgment  of  the  Court,  pronounced  by  Mr.  Justice 

Judge  Barbour,  that  "  persons  are  not  subjects  of  commerce."  Four  of  the  Jus- 
tices out  of  the  seven  who  heard  that  case,  he  says,  namely — himself.  Story, 
McLean,  and  Baldwin,  thought  that  commerce  did  comprehend  the  intercourse  of 
persons  or  passengers ;  and  a  fifth,  Mr.  Justice  Thompson,  declined  expressing  an 
opinion  on  that  point.  The  case  of  New  York  vs.  Miln,  he  thinks,  is  perfectly  con- 
sistent with  the  cases  of  Gibbons  vs.  Ogden,  and  Brown  vs.  Maryland,  and  was  not 
intended  to  modify,  in  the  slightest  particular,  what  had  been  the  judgments  in  the 
latter  cases.  These  views  of  Mr.  Justice  Wayne,  should,  of  course,  be  considered 
in  connexion  with  what  is  said  in  the  very  able  dissenting  opinion  of  the  Chief- 
Justice,  with  whom  Judges  Panicl,  Woodbury,  and  Nelson  concurred. 

The  late  case  of  Cooley  vs.  The  Wardens  of  Philadelphia,  December  term,  1851, 
12  Howard's  Reports,  300,  is  another  decision  upon  this  vexed  question  of  the 
power  to  regulate  commerce.  It  decides  that  the  grant  of  this  power  to  Con- 
gress does  not  deprive  the  States  of  the  power  to  legislate  on  the  subject  of  pilots, 
and  regulate  pilotage  fees  and  penalties  demanded  for  neglect  or  violation.  From 
this  decision  Justices  Wayne  and  McLean  dissented. 

*  11  Peters'  Reports,  257. 

t  Ante,  p.  428. 

J  The  closing  remarks  of  Mr.  Clay's  speech  were  deeply  impressive :  "  The 
day  will  be  disastrous  to  this  country,"  he  exclaimed,  "  when  this  Court  shall 
throw  itself  upon  the  ocean  of  uncertainty  and  adopt  an  interpretation  of  the 
prohibition  of  the  Constitution,  which  will  apply  to  r.  constructive  bill  of  cr.-<!U. 
The  large  and  prosperous  commercial  operations  of  our  country  are  carried  on  by 
bills,  of  exchange,  notes,  and  bank  notes,  redeemable  in  specie,  and  on  which  suit 


494:  LIVES   OF  THE  CHIEF-JUSTICES. 

McLean,  sustained  the  validity  of  the  law.  The  case  of  Craig  vs. 
Missouri,  was  held  not  to  be  authority,  on  the  point  that  the  bills  of 
the  Kentucky  Bank  were  bills  of  credit  within  the  meaning  of  the 
Constitution,  as  the  decision  in  that  case  applied  to  obligations  of  an 
entirely  different  character.  Though  a  State  was  prohibited  from 
emitting  bills  of  credit — that  is  to  say,  such  paper  as  was  denominated 
bills  of  credit,  before  and  at  the  time  of  the  adoption  of  the  Constitu 
tion, — yet  there  was  no  limitation  in  the  Constitution,  on  the  power  of 
a  State  to  incorporate  banks.  A  State  might  therefore  grant  acts 
of  incorporation  for  the  attainment  of  those  objects  which  it  deems 
essential  to  the  interests  of  society.  Such  a  power  is  necessarily  inci- 
dent to  sovereignty. 

The  last,  and  perhaps  most  important  of  these  cases,  is  the  cele- 
brated case  of  Charles  River  Bridge  vs.  Warren  Bridge.*  It  had 
been  argued  at  a  former  term,  before  Chief-Justice  Marshall,  and  after 
being  held  under  advisement  by  the  Court,  for  a  year,  was,  on  a  differ- 
ence of  opinion  among  the  Judges,  ordered  to  be  reargued.  In  this 
case,  the  Chief-Justice  delivered  his  first  constitutional  judgment — a 
judgment  in  which  he  sustained, — in  opposition  to  the  powerful  rea- 
soning of  Daniel  Webster,  who  appeared  as  counsel  for  the  plaintiffs, — 
the  validity  of  the  Massachusetts'  law,  incorporating  the  Warren 
Bridge.  As  the  question  itself  is  one  of  great  interest,  and  the  judg- 
ment of  the  Court  has  been  the  subject  of  much  criticism,  it  may  be 
proper  here  very  briefly  to  notice  this  case. 

The  Charles  River  Bridge  held  its  franchises  under  acts  of  the  State 
and  colonial  Legislatures  of  Massachusetts.  It  claimed  that  these 
acts  vested  in  the  Company,  in  perpetuity,  an  exclusive  right  of  erect- 
ing and  maintaining  a  bridge  over  the  Charles  River,  and  receiving 
the  tolls  ;  and  being  a  grant,  or  contract,  within  the  meaning  of  the 

may  be  brought  should  they  not  be  paid  according  to  their  tenor.  The  credit  of 
all  such  bills  may  be  brought  into  question,  should  the  Court  decide  this  case 
against  the  defendants.  KEEP  TO  THE  PLAIN  MEANING  OP  THE  TERMS  OF  THE 
CONSTITUTION,  and  do  not  seek,  BY  CONSTRUCTION,  to  include  in  its  prohibitions 
such  paper  as  that  which  is  brought  into  question  in  this  case,  and  all  will  be 
safe." 

*  This  case  is  reported  at  length  in  the  llth  volume  of  Peters'  Reports,  com- 
prising about  one-third  of  the  entire  volume.  Over  sixty  pages  are  devoted  to 
the  elaborate  and  very  able  dissenting  opinion  of  Judge  Story. 


ROGER  B.  TANEY.  495 

Constitution,  as  settled  by  former  decisions  of  the  Court,  the  Legislature 
had  no  power  to  impair  the  obligation  of  this  contract,  by  authorizing 
another  bridge,  and  especially  a  free  one,  by  the  side  of  the  Charles 
River  Bridge.  This  the  Legislature  of  Massachusetts  had  assumed 
to  do,  by  incorporating  the  "proprietors  of  the  Warren  Bridge," 
which,  after  having  paid  its  expenses,  within  a  period  not  exceeding 
six  years,  was  to  be  surrendered  to  the  State.  The  Charles  River 
Bridge  filed  a  bill  to  obtain  an  injunction,  to  prevent  the  erection  of 
the  Warren  Bridge.  The  decision  of.  the  State  Court  being  in  favor 
of  the  validity  of  the  law,  the  case  was  brought  into  the  Supreme 
Court  of  the  United  States,  on  the  ground  that  the  act  of  the  Mas- 
sachusetts Legislature  violated  the  Constitution  of  the  United  States, 
which  prohibits  any  State  from  passing  laws  impairing  the  obligations 
of  contracts. 

The  Chief-Justice  delivered  the  opinion  of  the  Court,  sustaining  the 
validity  of  the  law,  and  sustaining  it,  as  we  conceive,  upon  the  highest 
principles  of  public  policy,  as  well  as  the  most  obvious,  and  indeed 
necessary  constitutional  construction.  The  plaintiffs'  claim,  of  course, 
rested  mainly  upon  that  class  of  cases,  noticed  in  the  sketch  of  Chief- 
Justice  Marshall,  which  hold  that  a  legislative  grant  is  a  contract, 
such  as  Fletcher  vs.  Peck,  Terret  vs.  Taylor,  and  especially  the  Dart- 
mouth College  case  ;  and  therefore  the  sovereign  power  of  the  State  is 
inhibited  from  passing  any  act  which,  even  constructively,  may  tend  to 
destroy  the  value  of,  or  impair,  that  contract.  The  extent  to  which 
these  doctrines  were  attempted  to  be  carried,  will  be  seen  by  reference 
to  the  case  of  Providence  Bank  vs.  Billings  and  Pittman,  heretofore 
cited,*  in  which  it  was  insisted  that  a  State  had  no  power  to  tax  a 
banking  corporation  chartered  by  the  State.  This  proposition,  how- 
ever, received  no  favor  at  the  hands  of  the  Court,  whose  decision 
sustained  the  sovereignty  of  the  State  in  the  exercise  of  such  a  power, 
even  though  it  might  be  used  to  impair  the  value  of  the  charter,  or 
contract.  The  present  case  involved  a  principle  entirely  similar  ;  and 
so,  indeed,  it  is  considered  in  the  opinion  of  the  Cliicf-Ju-tico.  He 
regards  the  Providence  Bank  case  as  precisely  analagous  to  tin- 
present,  and  places  his  decision  on  the  same  grounds.  "The  case 
now  before  the  Court,"  he  remarks,  "is,  in  principle,  precisely  the 
•  Ante,  page  426. 


4:96  LIVES  OF  THE  CHIEF-JUSTICES. 

same.  It  is  a  charter  from  the  State.  The  act  of  incorporation  is 
silent  in  relation  to  the  contested  power.  The  argument  in  favor  of 
the  proprietors  of  Charles  River  Bridge,  is  the  same,  almost  in  words, 
with  that  used  by  the  Providence  Bank  ;  that  is,  that  the  power 
claimed  by  the  State,  if  it  exists,  may  be  so  used  as  to  destroy  the 
value  of  the  franchise  they  have  granted  to  the  corporation.  The 
argument  must  receive  the  same  answer  ;  and  the  fact,  that  the  power 
has  been  already  exercised,  so  as  to  destroy  the  value  of  the  franchise, 
cannot  in  any  degree  affect  the  principle.  The  existence  of  the  power 
does  not  and  cannot  depend  upon  the  circumstances  of  its  having  been 
exercised  or  not."  The  power  which  the  State  had  claimed  to  exercise 
in  the  Providence  Bank  case,  was  the  taxing  power  ;  the  power  which 
it  claimed  to  exercise  in  this  case,  was,  the  power  to  make  internal 
improvements,  and  regulate  public  travel ;  and  the  Chief-Justice  con- 
siders them  both  alike  as  elements  of  sovereignty,  and  as  essential  to  the 
existence  of  government.  "  A  State  ought  never  to  be  presumed  to 
surrender  this  power,"  he  says,  "  because,  like  the  taxing  power,  the 
whole  community  have  an  interest  in  preserving  it  undiminished.  And 
when  a  corporation  alleges,  that  a  State  has  surrendered,  for  seventy 
years,  its  power  of  improvement  and  public  accommodation,  in  a  great 
and  important  line  of  travel,  along  which  a  vast  number  of  its  citizens 
must  daily  pass,  the  community  have  a  right  to  insist,  in  the  language 
of  this  Court,  above  quoted,  '  that  its  abandonment  ought  not  to  be 
presumed,  in  a  case,  in  which  the  deliberate  purpose  of  the  State  to 
abandon  it,  does  not  appear.' " 

The  opinion  of  the  Chief-Justice,  dismissing  the  bill,  was  concurred 
in  by  Judges  Wayne,  Baldwin,  and  Barbour.  Judge  McLean  con- 
curred in  the  judgment,  on  the  ground  that  the  Court  had  no  jurisdic- 
tion ;  the  State  law,  in  his  view,  acting  not  upon  the  contract,  but  upon 
the  property,  and  Judges  Story  and  Thompson  dissented. 

The  decisions  in  these  cases  were  of  course  not  suffered  to  pass 
without  remark  and  criticism.  An  elaborate  commentary  upon  them 
appeared  in  the  "New  York  Review,"  for  April,  1838,  in  which  the 
writer,  adopting,  of  course,  the  doctrines  of  Judge  Story,  in  his  dis- 
senting opinions,  handles  the  judgments  of  the  Supreme  Court  with  no 
little  severity.  "  In  reading  these  decisions,"  he  remarks,  "  we  per- 
ceive at  once  an  altered  tone,  and  a  narrower  spirit,  not  only  in  Chief- 


ROGER   B.  TANEY.         .  497 

Justice  Taney,  but  even  in  some  of  the  old  associates  of  Chief-Justice 
Marshall,  when  they  handle  constitutional  questions.  The  change  is 
so  great,  and  so  ominous,  that  a  gathering  glooin  is  cast  over  the 
future.  We  seem  to  have  sunk  suddenly  below  the  horizon,  to  have 
lost  the  light  of  the  sun,  and  to  hold  on  our  way  per  incertam  lunem 
sub  lucemaltgna"  One  can  scarcely  refrain  from  a  smile  at  the  evident 
earnestness  with  which  the  writer  expresses  his  desponding  fears  and 
doubts.  The  reflections  that  these  decisions  gave  rise  to,  were,  to  his 
mind,  of  the  most  painful  character,  inducing,  he  says,  the  conviction 
that  the  Constitution  was  seriously  impaired  ;  that  the  clause  restrain- 
ing a  State  from  passing  any  law  impairing  the  obligation  of  contracts, 
was  essentially  expunged  from  the  Constitution,  so  far  as  concerns  leg- 
islative grants  ;  that  the  grant  to  Congress  of  power  to  regulate  com- 
merce, was  impaired  ;  and  that  the  prohibition,  that  "  no  State  shall 
emit  bills  of  credit,"  was  in  effect  repealed  ;  and  the  writer's  dismal 
apprehensions  are  summed  up  with  this  sad  reflection :  "  In  short, 
when  we  consider  the  revolution  in  opinion,  in  policy,  and  in  numbers, 
that  has  recently  changed  the  character  of  the  Supreme  Court,  we 
can  scarcely  avoid  being  reduced  nearly  to  a  state  of  despair  of  the 
Commonwealth  !" 

These  apprehensions  were,  in  some  degree,  shared  by  others,  and 
even  by  Judge  Story  himself,  who  was  so  much  dissatisfied  with  the 
decisions  of  the  cases  referred  to,  that  he  was  upon  the  point  of  resign- 
ing his  seat  on  the  bench.  Writing  to  Judge  McLean,  he  says: 
"  There  will  not,  I  fear,  ever,  in  our  day,  be  any  case  in  which  a  law 
of  a  State,  or  of  Congress,  will  be  declared  unconstitutional,  for  the 
old  constitutional  doctrines  are  fast  fading  away,  and  a  change  has 
come  over  the  public  mind,  from  which  I  augur  little  good.  Indeed, 
on  my  return  home,  I  came  to  the  conclusion  to  resign.  But  my 
friends  have  interposed  against  my  intention,  and  I  shall  remain  on 
the  bench,  at  least  for  the  present."*  Story  remarks,  in  this  same 
letter,  that  the  opinion  delivered  by  the  Chief-Justice,  in  the  Bridge 

*  2  Story's  Life  and  Letters.  It  may  be  added  that  Judge  Story's  cli;i»rin 
arose  mainly  from  the  decision  in  the  Bridge  case,  and  that  it  was  cntin  ly  di- 
connccted  from  anything  like  personal  feeling  toward  the  CliiH'-Ju.-tic.'  and  tho 
majority  of  the  Court.  In  a  letter  written  during  the  same  term  he  remarks : 
"  The  Judges  go  on  quite  harmoniously.  The  new  Chief-Justice  conducts  himself 
with  great  urbanity  and  propriety,"  Ac. 
32 


498  LIVES  OF  THE  CHIEF-JUSTICES. 

case,  was  not  deemed  satisfactory,  and  that  a  great  majority  of  the 
ablest  lawyers  in  Massachusetts  were  against  the  decision  of  the  Court. 
This  no  doubt  was  so,  and  he  might  have  added,  that  able  lawyers 
elsewhere,  as  had  been,  and  is,  and  always  will  be  the  case  in  the 
decision  of  all  delicate  and  important  questions  of  constitutional  law, 
differed  in  opinion  in  regard  to  the  decision.*  It  is  thought  unnecessary, 
however,  now  to  vindicate  the  propriety  and  correctness  -of  that  judg- 
ment. It  has  been  generally  acquiesced  in,  and,  I  believe,  approved, 
by  some  of  the  best  legal  minds  in  the  country.  It  might  very  well 
be,  that  the  position  of  Judge  McLean  was  entirely  correct,  and  that 
the  case  on  the  merits  was  with  the  plaintiffs  ;  it  might  be,  that  Judge 
Story  was  also  correct,  when  he  stated  in  one  of  his  letters,  that  "  a 
case  of  grosser  injustice,  and  more  oppressive  legislation,  never  ex- 
isted ;"  and  yet  all  this  had  really  very  little  to  do  with  the  merits  of  the 
question  as  it  was  presented  on  the  record.  That  question  was, 
whether,  even  admitting  the  State  law  to  have  been  oppressive  and 
unjust,  and  an  interference  with  vested  rights,  the  Federal  tribunals 
could  annul  it,  it  being  conceded  that  this  could  not  be  done,  under 
former  decisions  of  the  Court,  unless  the  act  incorporating  the  Warren 
Bridge  should  be  deemed  a  violation  of  the  contract  implied  in  the 
legislative  grants  to  the  Charles  River  Bridge.  This  question  was 
met  and  decided  in  the  negative.  Indeed,  the  time  seemed  to  have 
come,  when  it  was  absolutely  necessary  to  assign  some  further  limit  to 
this  doctrine  of  implied  contract  in  legislative  acts — as  had  once  before 
been  done  in  the  Providence  Bank  case — a  doctrine  which,  pushed  to 
its  last  consequences,  would  absolutely  prohibit  a  State  Legislature 
from  authorizing  the  construction  through  its  territory  of  two  collate- 
ral turnpikes,  or  lines  of  canal,  and  perhaps  from  passing  general  acts 
for  the  incorporation  of  bridge  or  railroad  companies,  such  as  may 
now  be  found  on  the  statute-books  of  some  of  the  States.  On  this 
point,  the  reasoning  of  the  Chief-Justice  is  so  clear  and  pointed,  that 
it  is  not  easy  to  see  what  answer  can  be  given  to  it.  "  If  this  Court 
should  establish  the  principles  now  contended  for,  what  is  to  become 

*  Even  Chancellor  Kent  expresses  his  dissatisfaction  in  a  letter  to  Story,  add- 
ing, "  I  have  lost  my  confidence  and  hopes  in  the  constitutional  guardianship  and 
protection  of  the  Supreme  Court. "—  2  Story's  Life  and  Letters,  270.  The  Chan- 
cellor, it  will  be  remembered,  was  not  satisfied  with  the  decision  of  Chief-Justice 
Marshall  in  Gibbons  us.  Ogden,  which  over-ruled  his  own  judgment. 


ROGER  B.  TANEY.  499 

of  the  numerous  railroads  established  on  the  same  line  of  travel  w.th 
turnpike  companies,  and  which  have  rendered  the  franchises  of  tin  a 
pike  corporations  of  no  value  ?  Let  it  once  be  understood  that  theh 
charters  carry  with  them  these  implied  contracts,  and  give  this  un 
known  and  undefined  property  in  a  line  of  travelling,  and  you  will 
soon  find  the  old  turnpike  corporations  awakening  from  their  sleep, 
and  calling  upon  this  Court  to  put  down  the  improvements  which  have 
taken  their  place.  The  millions  of  property  which  have  been  invested 
in  railroads  and  canals,  in  lines  of  travel  which  had  been  before  occu- 
pied by  turnpike  corporations,  will  be  put  in  jeopardy.  We  shall  be 
thrown  back  to  the  improvements  of  the  last  century,  and  obliged  to 
stand  still  until  the  claims  of  the  old  turnpike  corporations  shall  be 
satisfied,  and  they  shall  consent  to  permit  these  States  to  avail  them- 
selves of  the  light  of  modern  science,  and  to  partake  of  the  benefit  of 
those  improvements  which  are  now  adding  to  the  wealth  and  pros- 
perity, and  the  convenience  and  comfort,  of  every  other  part  of  the 
civilized  world." 

The  judicial  opinions  and  decisions  of  Chief-Justice  Taney  arc  col- 
lected in  the  last  six  volumes  of  Peters'  Reports,  and  the  fourteen  vol- 
umes of  Howard's  Reports  of  the  Supreme  Court.  They  com- 
prise altogether  a  collection  of  which  any  jurist  might  have  reason  to 
be  proud.  It  will,  of  course,  be  impossible  to  do  more  in  this  place 
than  barely  to  glance  at  a  few  of  the  more  important  and  interesting 
of  these  cases,  and  in  making  my  selections  I  shall  confine  myself 
mainly  to  that  class  of  cases  which  involve  the  decision  and  settlement 
of  questions  of  constitutional  law. 

One  of  the  most  interesting  of  these  questions  was  that  which  arose 
at  the  very  next  term  after  the  decision  in  the  Charles  River  Bridge 
case,  in  the  controversy  between  Rhode  Island  and  Massachusetts, 
relative  to  the  boundary  line  between  these  States.  This  case 
attracted  much  attention  at  the  time,  both  on  account  of  the  novelty 
of  the  question,  and  the  character  of  the  parties  litigant.  The  State 
of  Rhode  Island  had  summoned  the  State  of  Massachusetts  to  the  bar 
of  that  "  more  than  Amphictyonic  Council" — the  Supreme  Court. 

The  complainant,  without  claiming  any  right  to  the  soil  to  the  ex- 
cision of  the  actual  occupants  tinder  the  laws  of  Massachusetts, 
claimed  political  sovereignty  and  jurisdiction  over  about  one  hundred 


500  LIVES  OF  THE  CHIEF-JUSTICES. 

square  miles  of  territory,  containing  a  population  of  about  five  thou- 
sand souls,  which  sovereignty  and  jurisdiction  then  were,  and  always 
had  been,  exercised  and  possessed  by  Massachusetts.  Rhode  Island 
alleged  a  mistake  in  the  original  location  of  the  boundary  line  between 
the  two  States,  and  demanded  that  this  boundary  line  might  now  be 
established  by  the  judgment  of  the  Court,  and  that  Rhode  Island 
might  be  restored  to  and  confirmed  in  the  sovereignty  and  jurisdiction 
of  the  disputed  territory.  The  counsel  for  the  State  of  Massachu- 
setts moved  to  dismiss  the  bill  for  want  of  jurisdiction  ;  first,  because  of 
the  character  of  the  respondent,  independent  of  the  nature  of  the  suit  ; 
and  secoudly,  because  of  the  nature  of  the  suit,  independent  of  the  cha- 
racter of  the  respondent.  The  discussion  was  conducted  with  distin- 
guished ability,  as  it  could  not  well  fail  to  be  when  such  counsel  as 
Daniel  Webster,  of  Massachusetts,  and  Samuel  L.  Southard,  of  New 
Jersey,  entered  the  lists  on  opposite  sides,  and  grappled  in  intellectual 
combat.  The  opinion  of  the  Court,  delivered  by  Mr.  Justice  Baldwin, 
was  adverse  to  the  motion  of  Mr.  Webster,  and  sustained  the  jurisdic- 
tion in  all  points.  It  may  be  found  at  length  in  the  report  of  the  case.* 

All  the  members  of  the  Court  who  heard  the  discussion,  appear  to 
have  concurred  in  the  result,  except  the  Chief-Justice,  who  delivered 
a  dissenting  opinion. 

Tliis  opinion  is  brief,  but  clear  and  pointed.  \It  discloses,  at  a 
glance,  the  conceptions  entertained  by  the  Chief-Justice  in  regard  to 
the  jurisdiction  of  the  Court  in  matters  of  controversy  between  States, 
and  is  another  evidence  of  that  habitual  caution,  and  it  may  be  said, 
repugnance,  which  he  has  always  manifested  in  wielding  the  power  of 
the  Federal  judiciary  to  control  or  coerce  State  legislation — a  power,  it 
may  be  added,  which  was  viewed  with  the  most  extreme  jealousy  in 
the  earlier  years  of  the  republic.  \He  does  not  doubt  the  jurisdiction  of 
the  Court,  under  the  Constitution,  to  hear  and  determine  a  controversy 
between  States,  where  the  suit  is  brought  to  try  a  right  of  property  in 
the  soil,  or  any  other  right  which  is  properly  the  subject  of  judicial 
cognizance  and  decision  ;  but  this  power  does  not  extend  to  a  suit 
brought  to  determine  political  rights,  as  he  held  the  present  to  be. 
Sovereignty  and  jurisdiction  are  not  questions  for  judicial  decision  ; 
for  the  allegiance  in  the  disputed  territory  cannot  be  a  matter  of  pro- 
*  12  Peters'  Reports,  713. 


ROGER  B.  TANEY.  501 

perty.  "  Contests  for  rights  of  sovereignty  and  jurisdiction,"  he  ob- 
serves, "  between  States,  over  any  particular  territory,  are  not,  in  my 
judgment,  the  subjects  of  judicial  cognizance  and  control,  to  be  recov- 
ered and  enforced  in  an  ordinary  suit,  and  are  therefore  not  within  the 
grant  of  judicial  power  contained  in  the  Constitution."  It  was  there- 
fore his  opinion,  against  the  unanimous  opinion  of  his  associates,  (ex- 
cept Mr.  Justice  Story,  who  did  not  sit  in  the  cause.  ">  that  the  bill 
ought  to  be  dismissed  for  want  of  jurisdiction. 

It  is  worthy  of  remark,  that  this  opinion  of  Chief-Justice  Taney 
was  so  deliberately  formed,  and  so  firmly  maintained,  as  to  be 
made  the  grounds  of  his  final  decision  in  the  cause.  After  a  variety  of 
proceedings  in  the  case,  which  are  fully  preserved  in  the  reports,*  the 

*  The  history  of  this  case  exhibits  the  curious  and  novel  spectacle  of  a  con- 
troversy between  two  independent  States  on  a  question  of  sovereignty  and  territo- 
rial jurisdiction,  assuming  in  the  Federal  Courts  all  the  features  of  an  ordinary 
equity  suit,  and  governed  throughout  not  only  by  the  principles,  but  by  the  prac- 
tice, of  the  English  Courts  of  Chancery.  The  motion  to  dismiss  the  bill,  at  the 
term  of  1838,  being  overruled,  Mr.  Webster  moved,  on  behalf  of  Massachusetts, 
and  obtained  leave,  to  withdraw  the  plea  and  appearance  which  had  been  entered 
for  the  State.  The  State  of  Rhode  Island  at  the  same  time  obtaining  leave  to 
amend  her  bill  of  complaint.  At  the  next  term  Rhode  Island  asked  for  a  rule  on 
the  State  of  Massachusetts  to  answer,  which  was  granted,  the  time  to  answer 
being  extended  until  the  next  term.  (Rhode  Island  vs.  Massachusetts,  13  Peters' 
Reports,  23.) 

In  conformity  with  this  rule,  Massachusetts  filed  a  plea  and  answer,  and  the 
cause  was  brought  before  the  Court  on  the  sufficiency  of  the  plea  and  answer,  at 
the  January  term,  1840.  (14  Peters,  210.)  After  a  very  elaborate  and  able  argu- 
ment, the  Chief-Justice  delivered  the  opinion  of  the  Court,  overruling  the  plea  of 
Massachusetts,  on  the  ground  of  its  violating  the  rules  of  pleading  in  Chancery 
Courts— it  being,  in  technical  parlance,  multifarious,  that  is,  containing  two 
separate  and  distinct  defences.  Leave  was  granted  to  Massachusetts,  however,  to 
demur  or  answer,  and  accordingly  she  came  in  at  the  next  term  with  a  general 
demurrer  to  the  bill,  alleging  that  it  contained  no  case  for  the  interference  of  the 
Court,  with  the  line  of  division  actually  existing,  as  stated  in  the  bill  itself,  be- 
tween two  independent  States,  fixed  by  treaty,  compact,  or  agreement  between 
them,  anil'acquiesced  in  for  a  century  or  more.  After  another  able  and  1 
argument,  the  Chief-Justice  delivered  the  opinion  of  the  Court,  overruling  the 
demurrer  on  established  principles  of  equity  jurisprudence,  granting  leave  to  the 
defendant,  however,  to  answer  the  bill.  (15  Peters,  233.)  Finally,  after  more  than 
ten  years  of  legal  warfare,  the  case  was  brought  to  argument  on  its  merits  and 
Massachusetts,  defeated  in  so  many  preliminary  combats,  was  signally  and  i-.m- 


502  LIVES   OF  THE  CHIEF-JUSTICES. 

matter  was  at  length  brought  to  argument,  on  the  merits,  in  the  win- 
ter of  1846.  The  opinion  of  the  Court,  delivered  by  Mr.  Justice  Mc- 
Lean, was  against  the  claim-  of  Rhode  Island,  on  the  ground  that  the 
alleged  mistake  in  running  the  boundary  line  was  not  clearly  esta- 
blished, and  even  if  such  mistake  were  proved,  it  would  be  difficult  to 
disturb  a  possession  of  two  centuries  by  Massachusetts  under  an  asser- 
tion of  right,  with  the  claim  admitted  by  Rhode  Island,  and  other  col- 
onies, in  the  most  solemn  form.  The  Chief-Justice,  concurring  in  the 
judgment  of  the  Court  dismissing  the  bill,  declined  expressing  any  opin- 
ion upon  the  merits  of  the  controversy,  but  places  his  decision  solely 
on  the  ground  of  a  want  of  jurisdiction.  "  We  are  to  determine,"  he 
says,  "  whether  Rhode  Island  is  in  this  Court  entitled  to  the  relief  she 
asks  for  Entertaining  upon  this  subject  the  opinion  heretofore  ex- 
pressed, and  which  has  been  confirmed  by  subsequent  reflection,  I  think 
she  has  not ;  and  that  this  Court  has  no  constitutional  power  to  de- 
cide the  question  in  dispute  between  the  States,  and  consequently 
that  the  bill  ought  to  be  dismissed."* 

Chief-Justice  Taney  delivered  the  opinion  of  the  Court  in  the  Bank 
of  Augusta  vs.  Earle,  and  the  two  other  cases  depending  on  the  same 
principle,  argued  at  the  same  time,  at  the  January  term,  ISSQ-f  This 
opinion  contains  some  interesting  doctrines  relative  to  the  nature  and 
character  of  corporations  created  by  statute,  and  the  rights  and  powers 
of  the  corporations  of  one  State  acting  within  the  territorial  jurisdic- 
tion of  another.  The  law  of  comity  among  nations,  permitting  corpo- 
rations created  by  one  sovereignty  to  make  contracts  in  another,  and 
to  sue  in  its  courts,  is  declared  to  prevail  among  the  several  States  of 
this  Union.  For,  the  States  of  the  Union  "  are  SOVEREIGN  STATES  ;  and 
the  history  of  the  past,  and  the  events  which  are  daily  occurring,  fur- 

pletely  victorious.  The  strategy  and  skill  of  the  lawyers  throughout  these  various 
campaigns  would  certainly  lose  nothing  in  comparison  with  that  displayed  by 
a  Frederick  or  a  Napoleon.  At  all  events,  we  are  forced  to  the  reflection,  that 
whether  the  Constitution  authorizes  it  or  not,  this  is  really  a  more  sensible  and 
satisfactory,  as  well  as  a  more  equitable  way  'of  settling  questions  of  sovereignty 
and  political  differences,  than  that  usually  adopted  for  maintaining  the  "  bal- 
ance of  power  "  between  the  States  of  Europe. 

*  Rhode  Island  vs.  Massachusetts.    4  Howard's  Reports,  639 

t  13  Peters'  Reports,  520. 


ROGER  B.  TANEY.  503 

nish  the  strongest  evidence  that  they  have  adopted  towards  each  other 
the  laws  of  comity  in  their  fullest  extent." 

During  the  session  of  the  Court  in  1841,  Judge  Barbour  died.*   On 

*  The  following  discriminating  tribute  to  the  memory  of  Judge  Barbour  is 
from  the  pen  of  his  brother  and  associate,  Mr.  Justice  Story.  A  brief  sketch  of 
his  life  and  services  may  also  be  found  an  the  introduction  to  the  last  volume  of 
Peters'  Reports. 

"  The  family  from  which  Judge  Barbour  was  descended,  was  one  of  the  oldest 
and  most  respectable  in  Virginia.  His  great-grandfather  was  a  merchant  of 
Scotland,  who  immigrated  to  this  country.  His  grandfather  was  the  pioneer  and 
first  settler  of  the  country  lying  between  the  eastern  base  of  the  Blue  Ridge  and  the 
South-west  mountains.  His  father,  Thomas  Barbour,  inherited  considerable  wealth, 
and  was  a  member  of  the  old  House  of  Burgesses,  from  the  then  very  large 
county  of  Orange.  He  was  one  of  those  who,  in  1769,  signed  the  '  Non-Importa- 
tion Act '  between  this  country  and  Great  Britain.  After  the  formation  of  the 
Union,  he  was  elected  to  the  Legislature.  Richard  Henry  Lee,  in  a  letter  to  his 
brother,  Arthur  Lee,  bore  testimony  to  his  worth,  to  the  effect,  '  that  he  was  glad 
that  Thomas  Barbour  was  in  our  State  Councils,  for  he  was  a  truly  intelligent  and 
patriotic  man.' 

"  On  the  maternal  side,  as  his  name  indicates,  Judge  Barbour  was  related  to 
the  Pendleton  family,  his  grandmother  having  been  the  aunt  of  the  distin- 
guished Judge  Pendleton.  Philip  Pendleton  Barbour  was  born  on  the  25th  of 
May,  1783.  Owing  to  his  great  hospitality,  and  a  long  series  of  disasters,  bis 
father  was  unable  to  afford  him  that  liberal  education  which  his  talents  and  early 
promise  would  have  justified.  He  was,  however,  sent  early  to  school,  where  ho 
soon  developed  many  of  those  qualities  for  which  he  was  afterwards  so  justly  dis- 
tinguished. He  exhibited  great  aptitude  for  the  acquisition  of  languages  ;  and, 
with  a  correct  taste  and  strong  memory,  sought  out  and  retained  through  life  the 
beauties  of  the  Greek  and  Roman  classics.  Even  in  the  performance  of  the  tasks 
of  a  country  school,  he  manifested  that  precision  of  information  and  depth  of 
research,  which,  on  a  broader  theatre,  and  carried  to  higher  subjects,  won  for  Lim 
a  wide-spread  and  enduring  reputation.  He  remained  at  school  until  the  end  of 
1799.  During  the  early  part  of  1800  he  studied  law  at  home  ;  but,  in  October, 
he  determined  to  visit  Kentucky,  where,  under  great  difficulty  and  embarrass- 
ment, he  commenced  the  practice  of  law.  In  the  summer  of  1801,  he  vu-lded  to 
the  persuasions  of  his  friends  to  return  to  Virginia ;  and,  having  borrowed  too 
necessary  funds,  spent  one  session  at  William  and  Mary  College.  I:i  1802,  he 
resumed  the  practice  of  law  in  Virginia.  In  October,  1804,  ho  was  u> 
Frances  T.  Johnson,  daughter  of  Col.  Benjamin  Johnson,  of  Orange  count 
ginia.  During  the  next  eight  years  he  applied  himself  unceasingly  to  hi-  . 
sion.  In  1812  he  was  elected  to  the  Assembly,  where  he  continued  two  sessions. 
In  1814,  he  was  elected  to  Congress,  where  he  continued  until  IW 
there,  ho  was  chairman  of  the  Naval  and  Judiciary  Committees ;  and  in  1821, 


504:  LIVES  OF  THE  CHIEF-JUSTICES. 

the  opening  of  the  Court  after  the  adjournment  caused  by  this  event, 
the  Attorney-General,  Mr.  Gilpin,  presented  the  proceedings  of  a 
meeting  of  the  bar  on  the  occasion  of  the  death  of  Judge  Barbour, 

was  chosen  Speaker  of  the  House  of  Representatives.  About  tho  year  1825, 
the  University  of  Virginia  went  into  operation.  He  was  offered  the  professor- 
ship of  law  in  that  institution,  and  was  pressed  by  Mr.  Jefferson  to  accept  it, 
He  refused  this  station,  however,  and  was  appointed  a  Judge  of  the  General 
Court  of  Virginia.  In  1827,  at  the  written  request  of  a  majority  of  his  old 
constituents,  he  resigned  his  seat  on  the  Bench,  and  was  reelected,  without 
opposition,  to  Congress.  In  1829,  together  with  the  illustrious  Madison,  he  was 
chosen  to  represent  the  county  of  Orange  in  the  convention,  called  to  amend  the 
Constitution  of  Virginia.  He  presided  over  ths  deliberations  of  this  body  in  a 
manner  which  elicited  the  approbation  of  its  members.  He  was  also  president  of 
the  Anti-Tariff  Convention,  which  mot  in  Philadelphia.  In  1830,  he  retired  from 
the  practice  of  a  profession  which  had  yielded  him  considerable  wealth,  and  of 
which  he  had  been  one  of  the  brightest  ornaments,  and  accepted  the  station  of 
Federal  Judge  for  the  eastern  district  of  Virginia.  The  chancellorship  was  offer- 
ed to  him  and  declined  ;  as  was  also  the  post  of  Attorney-General.  He  refused 
the  nomination  for  a  seat  in  the  Court  of  Appeals,  the  Gubernatorial  Chair,  and 
the  Senate  of  the  United  States.  As  Federal  Judge,  he  won  new  honors,  and 
showed  himself  worthy  of  tha  high  and  enviable  station  to  which  in  1836  he  was 
called,  that  of  Associate-Judge  of  the  Supreme  Court1- of  the  United  States. 
Having  thus  reached  the  height  of  the  profession  which  he  had  chosen,  he  was  un- 
weariedly  striving,  with  a  virtuous  ambition,  to  win  that  famo  which  great  ability 
c*an  only  give  when  joined  with  pure  principles,  when  death  cut  him  off  in  his 
useful  career,  and  robbed  our  country  of  one  of  its  most  distinguished  sons. 

"  It  remains  for  us  to  take  a  brief  notice  of  the  professional  attainments  and 
judicial  character  of  Mr.  Justice  Barbour.  It  has  been  already  seen  that  no  incon- 
siderable portion  of  his  life  was  employed  in  active  political  duties  and  pursuits, 
which  if  not  incompatible  with,  are  (to  say  the  least)  by  no  means  favorable  to  the 
cultivation  of  juridical  knowledge,  or  to  found  a  solid  reputation  in  the  law.  He 
did  not,  however,  at  any  timo  relax  his  vigilance  in  his  professional  studies,  or  be- 
come indifferent  to  professional  success.  On  the  contrary,  he  had  the  ambition  to 
acquire  all  the  knowledge  which  might  be  useful  in  his  practice  at-  the  bar,  and 
the  persevering  firmness  to  surmount  every  intervening  obstacle.  His  mind  was 
in  a  remarkable  degree  acute,  sound,  and  discriminating,  inclining  to  subtilty  in 
disquisition,  but  not  misled  by  it.  "He  was  earnest,  candid,  patient,  and  laborious 
in  all  his  investigations  ;  quick  to  discern  the  real  points  and  merits  of  a  case  ; 
but  slow  in  arriving  at  his  own  conclusions.  His  talents  were  of  a  high  order  ; 
but  he  was  distinguished  less  for  brilliancy  of  effort,  than  for  perspicacious,  close, 
and  vigorous  reasoning.  He  sought  less  to  be  eloquent  than  to  be  accurate  ; 
less  to  persuade  by  declamatory  fervor,  than  to  convince  by  clear  and  logical 


ROGER  B.  TANEY.  505 

and  moved  that  they  be  entered  on  record.  Chief-Justice  Taney 
responded  in  the  following  appropriate  and  affecting  remarks :  "  I 
speak  in  the  name  of  the  Court,  and  by  its  authority,  when  I  say 
that  we  have  scarcely  yet  recovered  from  the  unexpected  blow  which  has 
fallen  upon  us.  Our  deceased  brother,  for  weeks  past,  has  been  daily 
with  us  in  the  hall,  listening  to  the  animated  and  earnest  discussions 
which  the  great  subjects  in  controversy  here  naturally  produce  ;  and 
he  has  been  with  us,  also,  in  the  calmer  scenes  of  the  conference  room, 
taking  a  full  share  in  the  deliberations  of  the  Court,  and  always  lis- 
tened to  with  the  most  respectful  attention.  It  was  from  one  of  these 
meetings,  which  had  been  protracted  to  a  late  hour  of  the  night,  that 
we  all  last  parted  from  him  apparently  in  his  usual  health  ;  and  in  the 
morning  we  found  that  the  associate  whom  we  so  highly  respected, 
and  the  friend  we  so  greatly  esteemed,  had  been  called  away  from  us, 
and  had  passed  to  another,  and  we  trust  a  better  world.  The  sudden- 
ness of  the  bereavement,  the  character  of  the  Judge  we  have  lost,  and 
his  worth  as  a  man,  made  it  proper  to  suspend 'the  business  of  the 
Court  until  to-day.  The  time  was  necessary,  not  only  to  pay  the 
honors  due  to  his  memory,  but  to  recollect  and  fit  ourselves  for 
renewed  labors. 

"  Judge  Barbour  was  a  member  of  this  Court  but  a  few  years  ; 
yet  he  has  been  long  enough  here  to  leave  behind  him,  in  the  published 

deduction.  The  learning,  therefore,  that  he  brought  to  the  discussion  of  every 
cause,  was  pertinent,  exact,  and  illustrative.  It  had  point  and  force,  and  not 
merely  remote  or  loose  analogies  to  give  it  effect.  When  he  was  elevated  to  the 
Bench,  he  felt  a  deep  and  conscientious  sense  of  his  new  duties  ;  and  was  solicit- 
ous to  master  all  the  learning  appropriate  to  discharge  them  in  the  best  manner; 
and  especially,  after  his  appointment  to  the  Bench  of  the  Supreme  Court,  he  de- 
voted his  leisure,  with  strenuous  diligence,  to  attain  all  the  various  knowledge 
demanded  for  eminence  in  that  station.  Few  men  ever  labored  wirn  more  entire 
success  in  such  a  noble  pursuit.  During  his  brief  career  in  that  Court.  In-  v.  idciu'd 
and  deepened  the  foundations  of  his  judicial  learning  to  an  extraordinary  extent ; 
his  reputation  constantly  advanced,  and  his  judgments  were  listem-d  to  with  in- 
creased respect  and  profound  confidence.  -If  he  had  lived  many  years  with  good 
health,  he  could  not  have  failed  to  have  won  the  highest  distinction  for  all  those 
quiilities  which  give  dignity  and  authority  to  the  Bench.  It  might  be  truly  said 
of  him,  that  he  was  not  only  equal  to  all  the  functions  of  his  high  KMition,  but 

al.ovo  them— par  negotiti,  et  supra .    His  country  has  lost  by  bis  death  a 

bright  ornament,  and  a  pure  ;i.nl  .-poil^  •  patriot." 


506  LIVES  OF  THE  CHIEF-JUSTICES. 

proceedings  of  the  Court,  striking  proofs  of  the  clearness  and  vigor  of 
his  mind,  and  of  his  eminent  learning  and  industry.  But  those  only 
who  have  been  intimately  associated  with  him  as  members  of  the  same 
tribunal,  can  fully  appreciate  the  frankness  of  his  character,  and  the 
singleness  anJ  purity  of  purpose  with  which  he  endeavored  to  dis- 
charge his  arduous  duties.  By  those  who  have  thus  known  him,  his 
memory  will  always  be  cherished  with  the  most  affectionate  remem- 
brance ;  and  we  will  cordially  unite  with  the  bar  in  the  honors  they 
propose  to  pay  his  memory." 

Judge  Barbour,  it  will  be  recollected,  came  to  the  bench  at  the 
same  term  with  the  Chief-Justice  ;  and  his  death  was  the  first  that 
had  occurred  since  Judge  Tauey  had  taken  his  seat.  He  was  suc- 
ceeded by  Mr.  JUSTICE  DANIEL,  of  Virginia,  who  is  still  a  member  of 
the  Court.  It  may  be  here  properly  remarked,  that  by  the  act  of 
Congress  of  March,  1831!,  two  additional  justices  were  added  to  the 
Court,  making  the  whole  number  nine,  instead  of  seven.  Under  this 
act  Mr  JUSTICE  CATRON,  of  Tennessee,  and  Mr.  JUSTICE  McKiNLEY,  of 
Alabama,  were  appointed,  and  took  their  seats  at  the  session  of  1838. 
The  latter  gentleman  having  recently  died,  his  place  has  been  filled  by 
the  appointment  of  Mr.  JUSTICE  CAMPBELL,  of  Alabama,  now  the 
junior  Judge  on  the  bench,  a  gentleman  who  brings  to  the  high  sta- 
tion he  occupies,  an  exalted  reputation  for  learning  and  ability,  and 
who  bids  fair  to  do  honor  to  a  tribunal  that  can  point  to  such  names 
on  the  roll  of  its  members,  as  a  Washington,  a  Livingston,  a  Story,  a 
Thompson,  and  a  Woodbury. 

I  may  also  here  properly  notice  the  few  other  changes  made  in  the 
Court  during  the  period  of  Chief-Justice  Taney's  service.  SAMUEL 
NELSON,  for  many  years  Chief-Justice  of  the  Supreme  Court  of  New 
York,  a  nanje  well  and  honorably  known  in  the  judicial  history  of  a 
State  whose  judges,  in  point  of  character,  learning,  and  ability,  may 
claim  to  rank  with  those  of  any  other  State  in  the  Union,  was  ap- 
pointed to  succeed  the  venerable  SMITH  THOMPSON,  on  the  13th  Feb- 
ruary, 1845.  That  eminent  and  enlightened  statesman,  and  sound 
constitutional  jurist,  LEVI  WOODBUIIY,  of  New  Hampshire,  succeeded 
to,  and  it  is  not  too  much  to  say,  filled,  the  place  of  Judge  Story,  by 
appointment  of  President  Polk,  20th  September,  1845.  Dying  a 
few  years  after,  BENJAMIN  R.  CURTIS,  of  Massachusetts,  was  appointed 


ROGER  B.  TANEY.  g07 

to  succeed  him,  on  the  27th  January,  1852.  ROBERT  C.  GRIER,  of 
Pennsylvania,  was  appointed  on  the  4th  August,  1846,  in  place  of 
Judge  BALDWIN,  deceased.  Both  Justice  Grier  and  Justice  Curtis,  are 
still  members  of  the  Court. 

The  session  of  1841  was  memorable  for  the  discussion  and  decision 
of  several  cases  of  great  magnitude  and  interest.  Among  them  were 
the  Florida  land  claim,  reported  under  the  title  of  Mitchell  vs.  United 
States  ;*  the  case  pf  the  Amistad,f  in  which  the  venerable  ex-Presi- 
dent Adams,  after  a  period  of  nearly  forty  years,  reappeared  at  the 
bar  of  the  Supreme  Court  as  one  of  the  counsel  ;|  and  the  case  of 
Groves  vs.  Slaughter, §  on  the  determination  of  which,  it  is  said,  more 
than  three  millions  of  dollars  depended — a  case  which,  says  Judge 
McLean,  was  "  argued  with  surpassing  ability  on  both  sides,"  as  no 
one  will  doubt,  who  recollects  that  the  counsel  for  one  of  the  parties 
were  Attorney-General  Gilpin,  and  Senator  Walker,  of  Mississippi, 
and  for  the  other,  Clay,  Webster,  and  Jones.  I  shall  not  dwell  upon 
these  cases,  as  the  Chief-Justice  did  not  deliver  the  judgment  of  the 
Court  in  either  of  them.  It  may  be  observed,  however,  that  in  the 
one  last  mentioned,  an  important  question  of  constitutional  law  was 
discussed,  namely,  whether  the  grant  of  power  to  Congress  to  regulate 
commerce  among  the  States,  vests  in  Congress  the  power  to  regulate 
the  traffic  in  slaves  among  the  different  States ;  and  if  so,  whether  it 
does  not  carry  with  it  an  implied  prohibition  on  the  States  from  mak- 
ing any  regulations  on  the  subject ; — but  the  question  was  not  adjudi- 
cated, the  decision  being  placed  on  other  grounds. 

At  the  same  term  of  the  Court,  a  case  from  New  Jersey  was  brought 
to  argument,  which  attracted  great  attention  at  the  time,  both  on 
account  of  the  novelty  of  the  claim,  and  the  immense  value  of  the 
interests  depending  on  its  decision.  The  territories  and  government 
of  East  Jersey,  originally  held  by  the  Duke  of  York,  by  grant  from 
Charles  II.,  King  of  England,  became  subsequently  vested  in  twenty- 

*  15  Peters'  Reports,  52. 

t  15  Peters'  Reports,  518 

J  Judge  Story,  in  cne  of  his  private  letters,  speaks  of  the  "  extraordinary  argu- 
ment" of  Mr.  Adama  in  this  case  ;  adding — "extraordinary  I  mean  fur  it  -  ; 
for  its  bitter  sarcasm,  and  its  dealing  with  topics  far  beyond  the  record  and  points 
of  discussion." 

§  15  Peters'  Report-,  -i:>i). 


508  LIVES    OF    THE   CHIEF-JUSTICES. 

four  persons,  called  the  East  Jersey  proprietors,  who  having  surren- 
dered up  to  the  crown  the  powers  of  government,  remained  the 
admitted  proprietors  and  owners  of  the  entire  soil  and  territory  of  East 
Jersey.  This  proprietary  body  survived  the  troubles  of  the  revolution, 
and  has  continued  to  exist,  from  that  day  to  the  present,  in  unbroken 
succession,  under  its  ancient  organization,  and  recognized  by  the  laws 
of  the  State,  as  the  undisputed  owner  of  all  vacant  and  ungranted 
lands  within  the  territorial  limits  of  East  Jersey. ,  Under  a  proprie- 
tary grant  of  a  certain  portion  of  the  bed  of  the  Raritan  river  and 
bay,  the  grantee,  who  claimed  an  exclusive  right  of  fishing  for 
oysters,  under  his  grant,  brought  an  action  of  ejectment  against 
a  defendant,  claiming  a  similar  right  under  a  lease  from  the 
State.  On  the  trial,  in  the  Circuit  Court,  Judge  Baldwin  sus- 
tained the  proprietary  title,  against  that  of  the  State.  And  the 
defendant  thereupon  brought  the  case  into  the  Supreme  Court. 
It  was  deemed  to  be  of  so  great  consequence,  that  the  Legislature 
of  New  Jersey  passed  a  special  act,  directing  the  Governor  of 
the  State  to  attend  the  sittings  of  the  Court,  at  Washington,  on  the 
argument.  The  most  eminent  and  able  counsel  were  employed  on 
both  sides,  and  the  arguments,  as  may  be  seen  from  the  report  of  the 
case,*  were  characterized  by  the  highest  degree  of  professional  learn- 
ing and  ability.  Judge  Barbour's  death  prevented  a  decision  of  the 
question  at  this  term,  and  a  reargument  was  ordered.  This  took  place 
at  the  session  in  January,  1842.  Mr.  George  Wood,  and  General 
Wall,  then  one  of  the  senators  from  New  Jersey,  appeared  for  the 
State  ;  and  Mr.  Ogden,  and  Mr.  Silas  Wright,  then  a  senator  in 
Congress  from  New  York,f  for  the  proprietary  claimant.  The  Chief- 

*  Martin  et  al.  vs.  Waddell.     16  Peters'  Reports,  367. 

t  This,  I  believe,  was  the  first,  and,  I  am  not  sure,  but  the  only  argument,  ever 
made  by  that  eminent  citizen  at  the  bar  of  the  Supreme  Court.  It  was  prepared 
with  extraordinary  and  most  laborious  care  and  industry,  and  like  every  other 
product  of  the  mind  of  its  author,  was  clear,  compact,  and  logical.  It  was  not 
regarded  at  the  time,  however,  as  one  of  his  happiest  efforts,  and  from  the  close- 
ness with  which  he  confined  himself  to  his  brief,  it  was  evident  that  he  himself 
felt  the  embarrassment  of  being  suddenly  transferred  from  the  Senate  Chamber  to 
the  judicial  forum.  Mr.  Wright  was  not  engaged  in  the'  first  argument.  The 
counsel  for  the  proprietors  on  that  occasion  were  Southard,  of  New  Jersey,  and 
Sherwood,  of  New  York. 


ROGER    C.    TANEY.  5Q9 

Justice  delivered  the  opinion  of  the  Court,  which  was  adverse  to  the 
proprietary  title.  The  navigable  waters  of  New  Jersey,  he  held, 
passed  to  the  Duke  of  York,  and  to  the  proprietors,  but  they  passed 
as  part  of  the  prerogative  rights  annexed  to  the  political  powers  con- 
ferred on  the  Duke,  and  not  as  private  property,  to  be  parcelled 
out  and  sold  to  individuals ;  and  the  right  of  fishery  was  a  part  of 
these  prerogative  rights,  or,  in  other  words,  one  of  the  royalties 
incident  to  the  powers  of  government. '  When  the  proprietors  surren- 
dered up  the  government,  the  navigable  waters  of  New  Jersey  went 
back  to  the  crown ;  and  when,  at  the  revolution,  the  people  of  New 
Jersey  took  possession  of  the  reins  of  government,  the  prerogatives 
and  regalities,  which  belonged  either  to  the  crown  or  the  parliament, 
became  immediately  and  rightfully  vested  in  the  State.  The  propri- 
etary claim  to  an  exclusive  fishery,  in  the  navigable  waters  of  New 
Jersey,  was  therefore  declared  to  be  unfounded,  and  the  judgment  of 
the  Circuit  Court  reversed.  Mr.  Justice  Thompson,  with  whom  Judge 
Baldwin  concurred,  delivered  a  very  able  and  closely  written  dissenting 
opinion.* 

In  the  well  know  Pennsylvania  slave  case,f  argued  and  decided  at 
this  term,  Mr.  Justice  Story  had  the  opportunity,  which,  a  few  years 
before,  he  had  feared  would  never  again  occur  in  his  time,  of  declaring 
a  State  law  unconstitutional  and  void,  and  that  too,  by  the  unanimous 

*  The  decision  in  this  case  was  thought  not  to  have  settled  the  question  as  to 
the  proprietary  title,  or  fee,  in  the  soil  of  the  navigable  waters  of  New  Jersey,  but 
merely  that  a  right  of  exclusive  fishery  did  not  exist  in  the  proprietors.  Accord- 
ingly, to  test  this  question,  an  action  of  ejectment  for  certain  city  lots  at  Jersey 
city,  reclaimed  from  the  bed  of  Hudson  River  below  low-water  mark,  was  after- 
wards commenced  under  the  proprietary  title  against  the  persons  in  possession. 
This  case  was  brought  to  argument  at  the  late  session  of  the  Supreme  Court.  The 
judgment  of  the  Court,  pronounced  by  the  Chief-Justice,  was  adverse  to  the  proprie- 
tary claim,  it  being  held  that  the  former  decision  was  substantially  a  disposition  of 
th"e  present  question,  and  that  the  fee  of  the  soil,  as  well  as  the  public  uses  of  the 
navigable  rivers  of  New  Jersey  had  passed  out  of  the  proprietors  to  the  Crown, 
and  at  the  revolution  had  passed  back  from  the  Crown  to  the  people  of  New 
Jersey.  The  author  speaks  with  knowledge  of  the  facts  of  this  case,  as  he  was 
one  of  the  counsel  engaged  on  the  argument  in  behalf  of  the  proprietary  title.  It 
will  be  found  reported  in  the  loth  Volume  of  Howur.!'.-  K- -ports,  under  tho  title 
of  Den  ex  dem  Russell  vs.  The  Associates  of  the  Jersey  Company. 

f  Prigg  vs.  Commonwealth  of  Pennsylvania.     16  Peters'  Reports,  543. 


510  LIVES    OF  THE  CHIEF-JUSTICES. 

judgment  of  the  Court.  It  is  to  be  remarked,  however,  that  while  all 
the  Judges  agreed  in  the  actual  decision  rendered  in  the  case,  namely, 
that  the  Pennsylvania  law  was  unconstitutional,  yet  the  Chief-Justice, 
and  two  or  three  of  his  associates,  did  not  concur  in  the  reasonings  and 
principles  laid  down  in  the  prevailing  opinion  of  the  Court.  The  case 
was  this  :  Prigg,  a  citizen  of  Maryland,  had  taken  a  fugitive  slave,  by 
force  and  violence,  from  the  State  of  Pennsylvania,  without  the  certi- 
ficate required  by  the  act  of  Congress,  of  1793,  and  brought  such 
slave  to  the  State  of  Maryland.  For  this  act,  Prigg  had  been  indicted 
under  a  law  of  Pennsylvania,  entitled,  "  An  act  to  give  effect  to  the 
provisions  of  the  Constitution  of  the  United  States,  relative  to  fugi- 
tives from  labor,  for  the  protection  of  free  people  of  color,  and  to  pre- 
vent kidnapping  ;"  one  section  of  which  act  provided,  that  the  taking 
and  carrying  away  of  any  negro  or  mulatto,  by  force  and  violence,  &c., 
out  of  the  State,  should  be  deemed  a  feloay,  punishable  by  fine  and 
imprisonment.  The  act  which  had  been  passed  by  the  Pennsylvania ' 
Legislature,  for  the  purpose  of  meeting  the  supposed  wishes  of  Mary- 
land, on  the  subject  of  fugitive  slaves,  provided  a  mode  for  their  ren- 
dition by  the  State  authorities.  The  fugitive  slave  had  been  brought 
before  the  Pennsylvania  magistrate,  by  virtue  of  the  law,  but  that 
functionary  refused  to  take  cognizance  of  the  case,  and  Prigg  there- 
upon, without  further  license  or  warrant,  carried  her  and  her  children 
away  into  Maryland.  By  an  amicable  arrangement  between  the  two 
States,  judgment  was  entered  against  Prigg  in  the  Court  below,  and 
the  case  was  thereupon  brought  to  the  Supreme  Court  of  the  United 
States,  by  the  cooperation  and  sanction  of  both  States,  in  the  most 
friendly  and  courteous  spirit,  with  a  view  to  have  the  grave  question 
presented  by  it,  finally  adjudicated. 

The  opinion  delivered  by  Judge  Story,  with  whom  Mr.  Justice 
Wayne  and  some  other  members  of  the  Court  concurred,  maintained, 
among  other  things,  that  the  Pennsylvania  law  was  unconstitutional, 
because  the  section  of  the  Constitution  which  provides  that  fugitives 
"  shall  be  delivered  up,"  places  the  remedy  bzclusively  in  Congress, 
and  therefore  that  the  States  are  prohibited  from  passing  any  law  on 
lie  subject,  whether  Congress  had  or  had  not  legislated  on  it.  Prom 
this  proposition,  the  Chief-Justice,  while  concurring  in  the  main 
with  the  conclusions  arrived  at  by  Judge  Story,  dissents.  He  holds 


ROGER  B.  TANEY.  5^ 

that  not  only  are  the  States  not  prohibited  from  legislating  on  the  sub- 
ject, but,  on  the  contrary,  it  is  enjoined  on  them  as  a  duty  to  protect 
and  support  the  owner  when  he  is  endeavoring  to  obtain  possession  of 
his  property  found  within  their  respective  limits.  Upon  this  point  he 
expresses  these  views  : 

"  The  language  used  in  the  Constitution  does  not,  in  my  judgment, 
justify  the  construction  given  to  it  by  the  Court.  It  contains  no  words 
prohibiting  the  several  States  from  passing  laws  to  enforce  this  right. 
They  are  in  express  terms  forbidden  to  make  any  regulation  that  shall 
impair  it.  But  there  the  prohibition  stops.  And  according  to  the  set- 
tled rules  of  construction  for  all  written  instruments,  the  prohibition 
being  confined  to  laws  injurious  to  the  right,  the  power  to  pass  laws  to 
support  and  enforce  it,  is  necessarily  implied.  And  the  words  of  the 
article  which  direct  that  the  fugitive  "  shall  be  delivered  up,"  seem  evi- 
dently designed  to  impose  it  as  a  duty  upon  the  people  of  the  several 
States  to  pass  laws  to  carry  into  execution,  in  good  faith,  the  compact 
icto  which  they  thus  solemnly  entered  with  each  other.  The  Constitu- 
tion of  the  United  States,  and  every  article  and  clause  in  it,  is  a  part 
of  the  law  of  every  State  in  the  Union,  and  is  the  paramount  law. 
The  right  of  the  master,  therefore,  to  seize  his  fugitive  slave,  is  the  law 
of  each  State  ;  and  no  State  has  the  power  to  abrogate  or  alter  it. 
And  why  may  not  a  State  protect  a  right  of  property  acknowledged  by 
its  own  paramount  law?  Besides,  the  laws  of  the  different  States,  in 
all  other  cases,  constantly  protect  the  citizens  of  other  States  in  their 
rights  of  property,  when  it  is  found  within  their  respective  territories  ; 
and  no  one  doubts  their  power  to  do  so.  And  in  the  absence  of  any 
express  prohibition,  I  perceive  no  reason  for  establishing,  by  implica- 
tion, a  different  rule  in  this  instance  ;  where,  by  the  national  compact, 
this  right  of  property  is  recognized  as  an  existing  right  in  every  State 
of  the  Union." 

-Judges  Thompson  and  Daniel  also  delivered  opinions  to  the  same 
effect,  namely,  that  the  constitutional  power  vested  in  Congre.- 
not  exclusive  ;  nor  did  it  prohibit  the  States,  in  the  absence  of  a  law  of 
Congress,  from  legislating  to  protect  and  enforce  this  riirlit.  guaranteed 
by  the  Constitution.  They  concurred,  however,  in  the  juilirmeiit  of 
reversal,  on  the  ground  that  the  act  of  Congress  of  1793  was  a  con- 


512  LIVES  OF  THE  CHIEF-JUSTICES. 

stitutional  exercise  of  power,  and  that  the  Pennsylvania  law  conflicted 
with  it,  and  was  therefore  null  and  void. 

At  the  session  of  1843,  Chief-Justice  Taney  delivered  the  judgment 
of  the  Court  in  the  case  of  Bronson  vs.  McKinzie,  et.  al.,*  annulling  and 
declaring  void  a  law  of  the  State  of  Illinois,  on  the  ground  that  it 
violated  the  provision  of  the  Constitution  which  prohibits  a  State  from 
passing  any  law  impairing  the  obligation  of  contracts.  The  act  of  the 
Illinois  Legislature,  passed  subsequent  to  the  contract,  provided  that 
the  equitable  estate  of  a  mortgagor  should  not  be  extinguished  for 
twelve  months  after  a  sale  under  a  decree  in  Chancery,  and  that  there 
should  be  110  sale  unless  two-thirds  of  the  amount  at  which  the  prop- 
erty has  been  valued  by  appraisers  should  be  bid  therefor.  Neither 
Judge  Story  nor  Judge  McKinley  was  present  at  this  discussion,  the 
result  of  which  furnished  another  evidence  that  the  apprehensions  ex- 
pressed by  the  former  were  entirely  unfounded.  The  opinion  of  the 
Chief-Justice  is  a  clear,  luminous  and  most  able  exposition  of  the  law 
on  this  subject,  and  has  generally  been  regarded  by  the  profession  as 
entirely  satisfactory.  Judge  McLean  dissented,  taking  the  somewhat 
subtle,  if  not  technical,  distinction,  that  the  State  law  acted  upon  the 
remedy,  and  not  upon  the  contract. 

This  case  was  followed  at  the  next  term  of  the  Court  by  Mc- 
Cracken  vs.  Hayward,f  which  fully  confirmed  the  decision  in  Bronson 
vs.  McKinzie  in  all  its  points,  re-affirming  the  doctrine  that  the  valua- 
tion and  stay  laws  of  Illinois  were  inoperative  upon  existing  contracts, 
and  void.  The  Chief-Justice  does  not  appear  to  have  been  present  at 
the  argument  and  decision  of  this  cause.  Yery  early  in  the  session 
he  was  attacked  by  severe  indisposition,  and  was  prevented  from  taking 
his  seat  during  the  remainder  of  the  term,  and  from  participating  in 
the  decision  of  the  very  important  cases  brought  on  for  argument. 
Among  these  may  be  mentioned  the  great  case  of  the  Girard  will,  so 
elaborately  and  splendidly  argued  by  Webster  and  Jones,  on  the  o^e 
side,  and  by  Binney  and  Sergeant  on  the  other,  the  opinion  in  which 
was  delivered  by  Justice  Story,  sustaining  the  will, — an  opinion  con- 
curred in  unanimously  by  his  brethren,  without  altering  (says  Story, 
with  some  appearance  of  self-satisfaction),  "  a  single  sentence  as  I 

*  1  Howard's  Reports,  311. 
f  2  Howard's  Reports,  608. 


ROGER  B.  TANET.  513 

originally  drew  it  up  •/'  also  the  celebrated  Gaines  case,  which  has  ex- 
cited so  great  a  degree  of  public  interest,  not  so  much  perhaps  on  ac- 
count of  the  large  amount  of  property  involved  in  the  controversy,  as 
by  reason  of  the  romantic  nature  of  the  history  upon  which  it  turned — 
the  history  of  Zulime  Carriere,  and  her  daughter,  Myra  Clark  Gaines  ;* 
and  also  the  case  of  the  Louisville,  Cincinnati  and  Charleston  Rail 
Road  Company  vs.  Letson,  which  established  the  very  important 
principle  that  a  corporation  is  to  be  deemed  an  inhabitant  of  a 
State,  capable  of  being  treated  as  a  citizen,  for  all  purposes  of 
suing  and  being  sued,  a  principle  not  only  denied  by  former  de- 
cisions of  the  Court,  but  the  opposite  of  which  had  been  considered 
by  the  profession  as  too  well  established  to  be  again  unsettled.f 
And  lastly,  the  case  of  Bank  of  the  United  States  vs.  United  States,! 
in  which  the  Government  was  held  liable  to  pay  fifteen  per  cent, 
damages  as  the  drawer  of  a  foreign  protested  bill,  under  a  statute 

*  Gaines  et  ux.  vs.  Chew  et.  al.  2  Howard's  Reports,  619.  Another  branch  of 
this  interesting  case  is  reported  under  the  title  of  Patterson  vs.  Gaines  ct  ux..  6 
Howard,  650  ;  and  another  under  the  title  of  Gaines  vs.  Relf  ct  al.,  12  Howard, 
473.  The  Chief-Justice  did  not  sit  in  these  causes,  as  a  near  family  relative  was 
interested  in  the  event.  The  decision  in  the  last  of  these  cases,  at  the  session  of 
1851,  finally  decided  the  claim  adversely  to  Mrs.  Gaines. 

t  Only  four  years  before,  the  Supreme  Court,  in  the  case  of  Commercial  Bank 
of  Vicksburgh  vs.  Slocura,  14  Peters  60,  following  the  cases  of  Strawbridge  vs. 
Curtis,  3  Cranch  267,  and  Bank  of  the  United  States  vs.  Devcaux,  5  Cranch  84,  had 
decided  that  a  corporation,  as  such,  was  not  a  citizen  of  the  United  States  ;  and  at 
the  same  term,  in  Irvine  vs.  Lowry,  14  Peters  293,  it  was  declared  that  the  deci- 
sions had  been  uniform  upon  this  subject,  and  must  be  followed.  Mr.  Justice 
Wayne,  who  delivered  the  opinion  of  the  Court  in  the  present  case,  overruling 
these  decisions,  remarks,  however,  that  the  Vicksburgh  Bank  case  was  most  reluc- 
tantly decided  on  the  authority  of  the  two  former  cases  above  alluded  to,  and 
that  not  only  were  these  cases  never  satisfactory  to  the  bar,  but  they  were  also 
unsatisfactory  to  the  Court  that  made  them.  No  one,  he  adds,  questioned  thorn 
more  than  the  Chief-Justice  (Marshall)  himself,  who  gave  these  two  decisiu 
he  repeatedly  expressed  his  regret  that  they  had  been  made.  In  a  letter  of .! ii.ls."- 
Story,  in  which  ho  expresses  his  satisfaction  that  the  Supreme  Court  had  at  lost 
adopted  a  more  correct  rule,  he  makes  a  similar  remark  in  regard  to  Chief-Justice 
Marshall,  adding  that  Mr.  Justice  Washii.gton  was  also  of  opinion  that  tli-~ 
sions  were  wrong  in  principle,  as  they  must  be  admitted  to  be  inconvenient  in 
practice. 

J  2  Howard's  Reports,  711. 
33 


514r  LIVES  OF  THE  CHIEF-JUSTICES 

of  Maryland,  allowing  that  amount  to  the  holder  of  such  protested 
bill.  In  this  case,  the  Chief-Justice  prepared  a  carefully  considered 
dissenting  opinion,  which  will  be  found  in  the  Appendix  to  this  volume 
of  the  reports.  The  case  had  been  before  him  as  Attorney-General, 
and  his  opinion  then,  as  now,  was,  that  the  Bank  had  no  claim  in  law 
or  equity  to  the  damages  in  question.  It  is  proper  here  $o  add  that 
in  a  subsequent  case  decided  at  the  session  of  1847,*  the  Court  ruled, 
that  the  Government  was  not  liable  to  the  Bank  for  these  consequen- 
tial damages.  The  Chief-Justice,  though  he  withdrew  from  the  bench, 
for  the  reason  that  he  had  given  an  official  opinion  as  Attorney-Gen- 
eral, concurred  entirely  in  this  judgment  of  the  Court.  Judges  Mc- 
Lean and  Wayne  dissented,  regarding  the  question  as  having  been 
substantially  decided  in  the  former  case. 

At  the  session  of  the  Court  in  the  winter  of  1845,  several  cases 
involving  questions  of  constitutional  law  were  brought  to  argument. 
Those  in  which  the  Chief-Justice  delivered  the  opinion  of  the  Court 
are  the  cases  of  Kendall  vs.  Stokes,  Searight  vs.  Stokes,  Jslel,  Moore 
&  Co.,  vs.  the  State  of  Ohio,  and  the  State  of  Maryland  vs.  the  Bal- 
timore and  Ohio  Rail  Road  Company,  all  of  which  are  contained  in  the 
third  volume  of  Howard's  Reports.  The  first  of  these  cases  was  a  suit 
brought  against  the  Post-Master  General  for  damages,  In  consequence 
of  acts  which  the  Court  held  to  be  official,  but  not  ministerial  acts  ; 
and  the  principle  was  recognized  that  a  public  officer,  acting  from  a 
sense  of  duty,  in  a  matter  where  he  is .  required  to  exercise  discretion, 
is  not  liable  to  an  action  for  an  error  of  judgment. 

In  the  second  of  these  cases  the  question  was,  as  stated  by  the  Chief- 
Justice,  whether  the  State  of  Pennsylvania  can  lawfully  impose  a  toll 
on  carriages  employed  in  transporting  the  mail  of  the  United  States 
over  that  part  of  the  Cumberland  road  which  passes  through  that 
State.  In  the  judgment  of  the  Court — Justices  McLean  and  Daniel 
dissenting — a  carriage,  whenever  it  carries  the  mail  of  the  United 
States,  must  be  held  to  be  laden  with  the  property  of  the  United 
States  within  the  meaning  of  the  compact  between  the  Federal  Go- 
vernment and  the  State  of  Pennsylvania,  and  therefore  exempt  from 
payment  of  tolls.  But  the  Court  did  not  construe  the  exemption  as 
extending  to  other  property  in  the  same  vehicle,  or  persons  travelling 

*  United  States  vs.  Bank  of  the  United  States.    5  Howard's  Reports,  382. 


Ett    I',   TANKY.  51;, 

in  it,  unless  in  the  service  of  the  United  States,  nor  to  more  carriages 
than  were  necessary  for  the  safe  and  convenient  conveyance  of  the 
mail.  The  case  was  thought  to  come  within  the  principle  established 
in  McCulloch  vs.  the  State  of  Maryland,  "  that  a  State  Government 
has  no  right  to  tax  any.  of  the  constitutional  means  employed  by  the 
Government  of  the  Union  to  execute  its  constitutional  powers."* 

Neil,  Moore  &  Co.,  vs.  the  State  of  Ohio,  presented  a  similar  ques- 
tion, and  the  Chief-Justice,  in  his  opinion,  carried  the  rule  still  far- 
ther. Under  the  compact  of  surrender  between  Congress  and  the 
State,  it  was  held  that  toll  could  not  be  charged  upon  passengers 
travelling  in  the  mail  stages  on  the  Cumberland  road,  without  being 
also  charged  upon  passengers  travelling  in  other  stages,  and  that  such 
a  tax  was  against  the  contract,  and  void. 

The  case  of  Maryland,  vs.  the  Baltimore  and  Ohio  Railroad  Com- 
pany, presented  the  question  whether  a  law  of  the  Maryland  Legisla- 
ture was  void  on  the  ground  that  it  impaired  the  obligation  of  a 
contract.  The  State  had  directed  a  subscription  of  $3,000,000  to  the 
Railroad  Company,  with  the  proviso  that  tlje  Company  should  locate 
the  road  through  the  towns  of  Cumberland,  Hagerstown,  and  Boons- 
borough,  or,  in  default,  should  forfeit  $1,000,000  for  the  use  of  Wash- 
in  ton  County  in  Maryland,  where  the  two  towns  last  mentioned  are 
situated.  The  Company,  having  assented  to  the  law,  refused  to  locate 
the  road  through  these  towns,  and  a  suit  was  accordingly  commenced 
for  the  penalty.  Su-bsequeutly  the  Maryland  Legislature  passed  a  law 
repealing  so  much  of  the  act  as  required  the  location  of  the  road 
through  these  towns,  and  remitting  the  forfeiture  of  the  $1,000,000. 
This  act,  it  was  alleged,  was  unconstitutional  and  void,  inasmuch  as  the 
penalty  had  become  due  to  Washington  County  by  contract.  The 
Court,  however,  the  Chief-Justice  delivering  the  opinion,  ruled  other- 
wise. The  original  act  was  not  a  contract  within  the  meaning  of  the 
Constitution.  It  was  merely  a  penalty  inflicted  on  the  Company  as  a 
punishment  for  disobeying  the  few,  which  the  State  had  a  right  to  release, 
the  whole  scope  of  the  law  showing  that  it  was  a  legislation  for  State 
purposes,  and  a  measure  of  State  policy,  which  the  State  had  a  right 
to  change  at  its  pleasure  ;  and  that  neither  the  County  nor  any  of  its 
citizens  acquired  any  private  interest  under  it  which  could  be  main- 
*  See  ante,  page  402. 


516  IAVES  OF  THE  CHIEF-JUSTICES. 

tained  in  a  court  of  justice.  The  case  was  argued  with  marked 
ability  by  Mr.  Sergeant  and  Mr.  Jervis  Spencer,  and  by  the  Attorney- 
General,  Nelson,  and  Mr.  Reverdy  Johnson  in  opposition. 

This  was  the  last  term  of  Judge  Story  upon  the  bench  of  the  Su- 
preme Court.  At  the  opening  of  the  Court  at  the  next  session,  in  the 
winter  of  1846,  Chief-Justice  Taney  was  called  upon  to  perform  the 
melancholy  duty  of  responding  to  the  announcement  of  the  death  of 
his  eminent  associate.  The  brief  and  touching  sentences  he  pro- 
nounced on  the  occasion  are  beautiful  alike  for  their  simplicity,  and 
their  sincerity  and  their  tenderness. 

"'It  is  difficult  for  me,"  he  remarked,  in  reply  to  the  Attorney-Gen 
eral,  who  had  moved  the  usual  testimonials  of  respect,  "  to  express  how 
deeply  the  Court  feel  the  death  of  Mr.  Justice  Story.  He  had  a  seat 
on  this  bench  for  so  many  years,  and  was  so  eminently  distinguished  for 
his  great  learning  and  ability,  that  his  name  had  become  habitually 
associated  with  the  Supreme  Court,  not  only  in  the  mind  of  those 
more  immediately  connected  with  the  administration  of  justice,  but  in 
that  of  the  public  generally  throughout  the  Union.  He  had  indeed 
all  the  qualities  of  a  great  judge  ;  and  we  are  fully  sensible  that  his 
labors  and  his  name  have  contributed  largely  to  inspire  confidence  in 
the  opinions  of  this  Court,  and  to  give  weight  and  authority  to  its 
decisions. 

"  It  is  not,  however,  in  this  country  only,  that  the  name  of  Justice 
Story  is  respected  and  honored.  His  works  upon  various  branches  of 
jurisprudence  have  made  him  known  to  eminent  men  wherever  judicial 
knowledge  is  esteemed  and  cultivated  ;  and  wherever  he  is  known, 
his  opinions  are  quoted  with  respect,  and  he  is  justly  regarded  as  one 
of  the  brightest  ornaments  of  the  age  in  which  he  lived.  But  it  is 
here,  on  this  bench,  that  his  real  worth  was  best  understood,  and  it  is 
here  that  his  loss  is  most  severely  and  painfully  felt.  For  we  have 
not  only  known  him  as  a  learned  and  able  associate  in  the  labors  of 
the  Court,  but  he  was  also  endeared  to*  us  as  a  man,  by  his  kindness 
of  heart,  his  frankness,  and  his  high  and  pure  integrity.  We  most 
truly  and  deeply  deplore  his  death,  and  cordially  unite  with  the  bar 
in  paying  appropriate  honors  to  his  memory. 

"  The  proceedings  of  to-day  will  therefore  be  entered  on  the  records 


ROGER  B.  TANEY  51Y 

of  the  Court,  as  a  lasting  testimony  of  our  respectful  and  affectionate 
remembrance  of  our  departed  brother." 

The  intercourse  between  this  eminent  Judge  and  the  Chief-Justice 
was  always  of  the  most  agreeable  character  Though  at  times  they 
differed  in  opinion  toto  calo,  and  especially  upon  questions  of  constitu- 
tional construction,  yet  they  habitually  cherished  for  each  other  feel- 
ings of  mutual  kindness  and  esteem.  Story  always  spoke  respectfully 
of  the  abilities  and  attainments  of  Taney,  even  before  the  latter  came 
to  the  bench.  Further  acquaintance  ripened  inio  reciprocal  esteem. 
When,  at  the  close  of  his  career,  Judge  Story  had  become  dissat- 
isfied with  his  position  on  the  bench,  we  find  him  frankly  acknow- 
ledging to  a  friend  that  his  personal  intercourse  with  the  Chief-Justice 
and  his  associates  had  always  been  pleasant.*  And  on  his  part  the 
Chief-Justice  never  failed  to  express,  for  Judge  Story  that  respect  and 
esteem,  which  were  so  justly  due  to  the  virtues  and  worth,  as  well  as 

•  Letter  to  Hon.  Ezekiel  Bacon.    April  12th,  1845 : 

"  I  have  been  long  convinced  that  the  doctrines  and  opinions  of  the  "  Old  Court" 
were  daily  losing  ground,  and  especially  those  on  great  Constitutional  questions. 
New  men  and  new  opinions  have  succeeded.  The  doctrines  of  the  Constitution,  so 
vital  to  the  country,  which  in  former  times  received  the  support  of  the  whole 
Court,  no  longer  maintain  their  ascendancy.  I  am  the  last  member  now  living  of 
the  old  Court,  and  I  cannot  consent  to  remain  where  I  can  no  longer  hope  to  see 
those  doctrines  recognized  and  enforced.  For  the  future  I  must  be  in  a  dead 
minority  of  the  Court,  with  the  painful  alternative  of  either  expressing  an  open 
dissent  from  the  opinions  of  the  Court,  or,  by  my  silence,  seeming  to  acquiesce  in 
them." 

Under  the  influence  of  these  sombre  views,  Judge  Story  came  to  the  conclusion 
definitely  to  resign  his  seat  in  the  Supreme  Court,  and  to  fall  back  on  his  law  pro- 
fessorship at  Harvard  College,  a  station  which  he  had  occupied  for  several  years ; 
and  with  this  view  he  returned  from  his  last  term  of  service  at  the  session  of  1845. 
His  death,  however,  occurred  before  he  had  an  opportunity  of  accomplishing  this 
design.  He  died  on  the  10th  of  September,  1845,  at  the  age  of  sixty-six  years, 
thirty-three  of  which  had  been  passed  in  the  discharge  of  his  duties  of  Judge  of 
the  Supreme  Court.  The  Life  of  Judge  Story,  in  two  volumes,  by  his  son  William 
W.  Story,  presents  a  full  and  complete  record  of  his  private,  his  judicial,  and  his 
professional  career.  It  is  marked  throughout  by  a  pious,  filial,  and  almost  rev- 
erential admiration  for  the  character  of  the  man  whose  memory  it  embalms ;  but 
this  by  no  means  detracts  from  its  rare  value  as  the  narrative  of  a  life  drawn  from 
the  amplest  materials,  and  illustrated  by  minute  description,  as  well  as  copious 
detail.  The  student  will  lind  it  a  book  to  be  reud  with  profit  as  well  as  pleasure. 


518  LIVES  OF  THE  CHIEF-JUSTICES. 

the  profound  and  comprehensive  learning,  of  one  of  the  most  illustrious 
jurists  this  country,  or  the  world,  has  produced. 

The  Massachusetts,  Rhode  Island,  and  New  Hampshire  License 
cases,*  reported  at  January  term,  1847,  brought  before  the  Court  a 
constitutional  question  of  great  magnitude  and  interest.  The  ques- 
tions in  these  cases  arose  under  that  much-discussed  clause  of  the 
Federal  Constitution,  which  vests  Congress  with  power  to  regulate 
commerce.  In  the  first  two  cases  the  precise  point  was,  whether  a 
State  might  assume  to  regulate  or  prohibit  the  retail  of  wines  and 
spirits,  the  importation  of  which  from  foreign  countries  has  been 
authorized  by  act  of  Congress  ;  and  in  the  last  case,  whether  a  State 
might  prohibit  by  law  the  sale  of  liquor  imported  from  another  State, 
there  being  no  act  of  Congress  to  regulate  such  importation.  In  the 
decision  of  these  cases  the  jndges  unanimously  determined  that  the 
laws  under  review  were  all  valid  and  constitutional. 

In  these  opinions,  however,  there  appears  to  be  much  diversity  as 
to  the  principles  on  which  the  cases  are  decided.  Six  of  the  judges, 
including  the  Chief-Justice,  expressed  their  views  at  length,  and  the 
whole  subject  of  the  power  of  Congress  over  foreign  and  internal 
commerce,  and  the  conflict  between  the  authority  of  the  General  and 
State  Governments  is  considered,  with  a  copious  fullness  of  argument, 
and  with  an  accuracy  and  closeness  of  deduction,  that  leaves  very  lit- 
tle to  be  said  in  any  future  discussion.  I  do  not  propose  to  notice 
any  of  these  arguments  except  that  of  the  Chief-Justice,  which  is  cer- 
tainly very  able,  and,  I  believe,  has  generally  been  regarded  as 
entirely  satisfactory  to  the  profession.  No  one,  I  apprehend,  can 
read  it  without  being  satisfied  that  it  places  the  decision  of  these 
cases — particularly  the  New  Hampshire  case — upon  true  and  correct 
grounds,  if  not  the  only  grounds  upon  which  they  can  permanently 
stand. 

The  Chief-Justice  does  not  deny,  but,  on  the  contrary,  fully  admits 
the  proposition,  that  if  these  State  laws  were  in  collision  with  an  act 
of  Congress,  they  would  be  unconstitutional  and  void.  If,  in  the 
Massachusetts  and  Rhode  Island  cases,  the  law  had  obstructed  the 
importation,  or  prohibited  the  sale  of  the  article  in  the  original  cask 

*  Thurlow  vs.  Massachusetts,  Fletcher  vs.  Rhode  Island,  and  Pierce  et  al.  vs. 
New  Hamphire.  5  Howard's  Reports,  504. 


ROGER    B.    TANEY.  519 

or  vessel,  in  the  hands  of  the  importer,  it  would  have  been  void  ;  be- 
cause the  importation  was  permitted  by  Congress  in  the  exercise  of  its 
constitutional  power  to  regulate  foreign  commerce.  But  this  he  held 
was  not  the  case.  The  State  laws  were  framed  to  act  upon  the  article 
after  it  had  passed  the  line  of  foreign  commerce  into  the  hands  of  the 
dealer,  and  had  become  a  part  of  the  general  mass  of  the  property  of 
the  State.  This,  he  contended,  was  precisely  the  principle  recognized 
in  Brown  vs.  Maryland,  and  to  which  he  gave  his  entire  assent. 

The  Xew  Hampshire  case  was  different.  The  law  prohibited  the 
sale,  in  any  quantity,  without  license  ;  and  the  sale,  in  that  case,  had 
been  made  by  the  importer,  in  the  cask  in  which  the  liquor  had  been 
imported  from  Massachusetts  iuto  New  Hampshire.  The  case  there- 
fore, in  his  view,  turned  upon  the  question,  whether,  in  the  absence  of 
a  law  of  Congress  regulating  commerce  between  the  States,  all  State 
laws  on  the  subject  are  null  and  void.  In  other  words,  whether  a  mere 
grant  of  power  to  the  General  Government,  can  be  construed  as  an 
absolute  prohibition  to  the  exercise  of  any  power  over  the  same  sub- 
ject by  the  States.  Upon  this  question  a  diversity  of  sentiment  had 
existed  among  the  members  of  the  Court,  as  was  evident  in  the  judg- 
ment in  Prigg  vs.  Pennsylvania.  The  Chief-Justice  had  there  dis- 
tinctly expressed  the  opinion,  that  a  mere  grant  of  power  to  Congress, 
was  not  exclusive,  or  prohibitory  upon  the  States,*  and  this  doctrine 
he  not  only  reiterates,  but  makes  the  main  ground  of  his  judgment. 
"  The  controlling  and  supreme  power  over  commerce  with  foreign 
nations,  and  the  several  States,"  he  observes,  "  is  undoubtedly  confer- 
red upon  Congress.  Yet,  in  my  judgment,  the  State  may,  nevertheless, 
for  the  safety  or  convenience  of  trade,  or  for  the  protection  of  the 
health  of  its  citizens,  make  regulations  of  commerce  for  its  own  ports 
and  harbors,  and  for  its  own  territory  ;  and  such  regulations  uiv  valid, 
unless  they  come  in  conflict  with  the  law  of  Congress.  Such  evidently, 
I  think,  was  the  construction  which  the  Constitution  universally  re- 
ceived at  the  time  of  its  adoption,  as  appears  from  the  legislation  of 
Congress  and  of  the  several  States  ;  and  a  careful  examination  of  the 
decisions  of  this  Court,  will  show,  that,  so  far  from  sanctioning  the 
opposite  doctrine,  they  recognize  and  maintain  the  power  of  the 

*  Ante,  p.  509.  lu.tbc  AVlit din;,'  Jlridge  case,  the  dissenting  opinion  of  the 
Chief-Justice  is  placed  upon  the  same  grounds.  Sec  post. 


520  LIVES    OF    THE   CHIEF-JUSTICES. 

States."*  This  construction  he  believes  is  legitimately  to  be  drawn 
from  what  was  really  intended  to  be  decided  in  Gibbons  vs.  Ogden,  as 
well  as  in  Brown  vs.  Maryland,  and  is  fully  and  authoritatively  sanc- 
tioned in  the  case  of  Wilson  vs.  The  Blackbird  Creek  Marsh  Company, 
heretofore  noticed  among  the  cases  decided  in  Chief-Justice  Marshall's 
time.f 

The  case  of  Cook  vs.  Moffat,|  decided  at  this  term,  brought  under 
review  and  reexamination,  the  question  of  the  effect  of  a  debtor's  dis- 
charge under  the  insolvent  laws  of  one  State,  on  a  contract  made  in 
another  State,  so  much  discussed  in  Chief-Justice  Marshall's  time,  and 
which  was  settled  by  the  decisions  in  Ogden  vs.  Saunders,  and  Boyle  vs. 
Zacharie.§  The  judgment  of  the  Court  was  in  accordance  with  these 
decisions.  The  Chief-Justice,  though  acquiescing  in  that  judgment,  on 
the  ground  that  the  question  was  res  adjudicata,  expressed  his  disap- 
probation of  the  principle  on  which  the  case  turned.  He  considered 
the  true  doctrine  to  be,  that  the  bankrupt  law  of  one  State,  should 
receive  in  the  tribunals  of  a  sister  State,  the  respect  and  comity 
which  the  established  usages  of  civilized  nations  extend  to  the 
bankrupt  laws  of  each  other. 

At  the  same  term,  the  very  important  Admiralty  case  of  Waring 
vs.  Clark,  |[  was  decided,  in  which  the  attention  of  the  Court  was,  for 
the  first  time,  called  to  the  question,  whether  the  Admiralty  jurisdic- 
tion, conferred  by  the  Constitution,  was  to  be  limited  to,  and  inter- 
preted by,  what  were  cases  of  Admiralty  jurisdiction  in  England,  when 
the  Constitution  was  adopted  by  the  States  of  the  Union  ;  or,  whether 
that  jurisdiction  in  a  public  navigable  river  extended  beyond  the  ebb 
and  flow  of  the  tide.  The  collision,  in  this  case,  had  taken  place  on 
the  Mississippi  River,  near  the  bayou  Goulah,  and  there  was  much 
doubt  whether  the  tide  flowed  so  high.  The  majority  of  the  Court, 
however,  thought  there  was  sufficient  proof  of  tide  there,  and  conse- 
quently it  was  not  necessary  to  consider  whether  the  Admiralty  juris- 
diction extended  higher.  This  subject  will  presently  be  noticed  again, 

*  In  these  views  the  Chief-Justice  is  sustained  by  the  opinions  of  Judges  Catron, 
Daniel,  Woodbury  and  Nelson. 
t  Ante,  p.  425, 
t  5  Howard's  Reports,  295. 
§  Ante,  p  399-400. 
U  5  Howard's  Reports,  441. 


ROGER  B.  TANEY.  521 

when  I  come  to  speak  of  the  case  of  the  Genesce  Chief,  in  which  the 
Chief-Justice  delivered  the  opinion,  asserting  the  bold  and  comprehen- 
sive doctrine,  that  the  Admiralty  power  of  the  Court  extends  beyond 
the  flow  of  the  tide  in  public  navigable  waters,  and  over  the  great 
fresh-water  lakes.* 

I  pass  over  several  important  cases,  a*t  this  and  the  next  ensuing 
term,  and  come  down  to  the  session  of  the  Court  in  1849,  which 
brought  to  final  argument  and  adjudication,  the  New  York  an442ostpn 
Passenger  cjjsfcs.f  They  arose  upon  the  same  constitutional  provision 
iavoTvedm  the  discussion  of  the  Licence  cases  which  I  have  just 
noticed,  namely,  that  which  vests  in  Congress  the  power  to  regulate 
commerce.  The  argument  involved  a  review  of  the  same  principles 
which  were  examined  in  the  former  discussions  on  this  subject,  and 
the  report  of  the  cases  occupies  no  inconsiderable  portion  of  the  entire 
volume  which  contains  the  decisions  made  at  the  session  of  1849. 
These  celebrated  cases,  either  one  or  both,  had  been  under  argument 
at  four  several  terms  of  the  Court,  commencing  with  the  argument  of 
Smith  vs.  Turner,  at  the  December  term,  1845.  The  question  pre- 
sented by  the  record  in  that  case,  was,  whether  a  law  of  the  State  of 
New  York,  laying  a  tax  upon  the  masters  of  vessels  arriving  from  a 
foreign  port,  of  one  dollar  for  every  steerage  passenger,  and  one  dollar 
and  fifty  cents  for  every  cabin  passenger,  and  upon  the  masters  of 
coasting  vessels,  of  twenty-five  cents  for  each  passenger  such  vessels 
might  contain,  for  "hospital  moneys,"  was  repugnant  to  the  Constitu- 
tion of  the  United  States,  and  void.  The  Massachusetts  case,  Norris 
vs.  the  City  of  Boston,  turned  upon  a  similar  question. 

The  decision   of  these  cases  presented  these  two  distinct  points 
for  adjudication.     1st.  Is  the  power  to  regulate  commerce,  <•/</ 
vested  in  Congress  ?     2d.  Is  a  tax  upon  persons  or  passcn- 


*  The  case  of  Waring  vs.  Clark,  it  may  be  added,  is  dMin.u'iiMied  for  the  rxlra- 
ordinary  and  singularly  powerful  dissenting  opinion  of  Jud.^1  W»o.l  i 
which,  upon  both  reason  and  authority,  he  denies  that  the  Admiralty  jtni 
extends  within  the  body  of  a  county  even  upon  tide  waters—  an  optaiou  whose 
learning  and  research,  whose  close  and  vigorous  logic,  and  whose  bold  and  orig- 
inal, and  comprehensive,  deductions,  leave  it  in  doubt  whether  the  capacity  of  its 
author  as  a  jurist  was  not  greater  than  a  long  life  of  public  service  hail  proved  it 
to  be  as  a  statesman. 

f  Smith  vs.  Turner,  Norris  vs.  City  of  Boston.    7  Howard's  Reports,  283. 


522  LIVES  OF   THE  CHIEF-JUSTICES. 

lation  of  commerce  ?  Both  of  these  points,  it  was  claimed,  on  the 
"""  argument,  had  been  heretofore  settled  by  repeated  and  solemn  judg- 
ments of  the  Court.  In  support  of  the  affirmative  of  the  first  proposi- 
tion, the  decisions  in  Brown  vs.  Maryland,  and  Gibbous  vs.  Ogden,* 
were  confidently  cited.  To  sustain  the  negative  of  the  latter  proposi- 
tion, the  authority  of  the  city  of  New  York  vs.  Milu,  was,  with  equal 
confidence,  invoked.  The  result  of  the  deliberations  of  the  consultation- 
room,  and  the  judgment  of  the  Court,  seem  to  have  left  both  questions 
in  an  uncertainty  still  more  perplexing,  and  an  obscurity  still  more 
profound,  than  when  the  discussion  begaiuJ  The  State  laws,  it  is  true, 
were  declared  null  and  void,  by  the  votes  of  five  Judges,  against  four.f 
And  thus  far  there  was  a  decision  of  the  cases  ;  but  everything  else 
was  left  unsettled.  Such  was  the  diversity  and  conflict  of  views  even 
among  the  Judges  who  concurred  in  the  prevailing  opinion,  that  the 
reporter  himself  seems  to  have  been  perplexed,  and  very  frankly  de- 
clares that  "  there  Was  no  opinion  of  the  Court,  as  a  Court." 

The  Chief-Justice  led  off  on  the  other  side  in  a  dissenting  opinion, 
which  met  the  full  concurrence  of  his  brethren,  Judges  Daniel  and 
Nelson,  and  in  which  he  was  most  powerfully  sustained  by  Judge 
.  Woodbury,  in  one  of  those  masterly,  comprehensive,  and  elaborate 
1  constitutional  arguments  upon  which  the  fame  of  that  eminent  man, 
as  a  jurist,  rests — the  most  elaborate,  perhaps,  and,  some  have  thought, 
the  ablest  ever  delivered  by  him  while  upon  the  bench — one  of  those 
full,  and  rigid,  and  exhausting  arguments,  whose  object  is  not  to 
demonstrate  a  theory  merely,  but  to  establish  a  principle,  and  literally 
to  overwhelm  and  annihilate  what  he  regarded  as  the  errors  which 
combated  it. 

The  opinion  of  Judge  Taney  is  comprised  within  thirty  pages  of  the 
reported  case,  and  is  well  worthy  of  attentive  and  careful  study  by 
any  one  desirous  of  becoming  master  of  the  principles  involved  in  the 
discussion.  I  shall  not,  of  course,  attempt  to  give  even  an  analysis 
of  it  in  this  place.  ^It  is  sufficient  to  remark,  that  he  adheres  through- 
out to  those  same  constitutional  views  and  constructions  which  he  had 
expressed  on  previous  occasions,  and  among  them,  that  the  power  to 
regulate  commerce  is  not  exclusive  in  Congress  ;  and  also,  that  persons, 

*  Ante,  p.  412. 

|-  For  Reversal — Judges  McLean,  Wayne.  Catron,  McKinley,  and  Grier. 

For  Affirmance— The  Chief-Justice,  and  Judges  Daniel,  Nelson,  and  Woodbury. 


ROGER  B.  TANEY.  523 

not  being  the  subjects  of  commerce,  a  tax  upon  passengers  or  emigrants 
could  not  be  considered  a  commercial  regulation. ^JThe  latter  proposition 
had  apparently  been  directly  held  in  the  case  of  City  of  New  York  vs. 
Miln,  the  authority  of  which,  upon  this  point,  was  now  attacked  in 
the  conference-room  of  the  Judges,  as  it  had  been  at  the  bar.  Mr. 
Justice  Wayne,  who  sat  in  that  case,  denied  that  it  established  any 
such  principle,  or  that  the  expression  there  used  was  sanctioned  by  the 
majority  of  the  Court ;  and  in  support  of  this  view  he  gives  a  state- 
ment of  his  own  recollections  of  the  circumstances  connected  with  the 
opinion  delivered  in  that  case.  The  Chief-Justice  differs  from  Judge 
Wayne  somewhat  in  these  recollections,  and  insists  that  the  dictum  in 
City  of  New  York  vs.  Miln,  was  to  be  regarded  as  the  judgment  of  a 
majority  of  the  Court ;  but  as  I  have  already  alluded  to  this  subject 
on  a  previous  page,  it  is  unnecessary,  in  this  place,  to  pursue  it  further.* 
The  cases  of  Luther  vs.  Borden  et  al,  f  decided  at  this  term,  brought 
before  the  Court  for  discussion  some  of  the  gravest  questions  which 
can  possibly  arise  relative  to  political  rights,  and  the  origin  and  ground 
of  government.  These  cases  grew  out  of  the  unfortunate  controversy 
in  Rhode  Island  in  regard  to  the  "  People's  Constitution,"  framed,  as 
it  was  admitted,  without  the  forms  of  law,  but,  as  it  was  claimed,  by 
the  votes  of  a  majority  of  the  people  of  the  State.  I  allude  to  these 
cases  not  for  the  purpose  of  tracing  the  origin  and  progress  of  the 
controversy,  'or  of  reviewing  the  discussions  which  grew  out  of  it ;  but 
for  the  purpose  barely  of  citing  another  instance  going  to  show  the  ex- 
treme repugnance  of  Chief-Justice  Taney  in  assuming  an  authority,  or 
extending  the  jurisdiction  of  the  Court  beyond  those  well  defined  and 
strict  limits  which  the  Constitution  had  marked  out.  Upon  a  former 
occasion,  in  the  case  of  Rhode  Island  vs.  Massachusetts,!  we  have  seen 
him  standing  alone  in  opposition  to  all  his  brethren,  declining  to  take 
cognizance  of  what  he  regarded  as  a  purely  political  question  lying  be- 
yond the  judicial  authority.  On  the  present  occasion,  with  the  assent 
of  all  his  brethren  who  participated  in  theargument,§  he  stands  nearly 

*  See  note,  ante,  page  492. 
t  7  Howard's  Reports,  1. 
J  Ante,  page  499. 

§  Judge  Woodbury  dissented  upon  the  sole  point  ns  to  the  authority  of  the  State 
to  declare  inartful  law.    His  elaborate  and  masterly  opinion  upon  this  question  ia 


524:  LIVES   OF   THE   CHIEF-JUSTICES. 

upon  the  same  ground.  The  question  which  of  the  two  opposing 
governments  was  the  legitimate  one  was  purely  a  question  of  political 
power  ;  the  political  department  of  the  State  had  determined  it,  and 
the  State  courts  had  recognized  and  acted  upon  this  determina- 
tion. Whatever  might  be  the  propriety  of  that  decision,  it  was  not 
for  the  Federal  tribunals  to  overstep  the  boundaries  of  their  known 
jurisdiction,  and  to  invade  the  proper  domain  of  the  political  depart- 
ment. "  Much  of  the  argument  on  the  part  of  the  plaintiff,"  he  remarks, 
"  turned  upon  political  rights  and  political  questions,  upon  which  the 
Court  has  been  urged  to  express  an  opinion.  "We  decline  doing  so.  The 
high  power  has  been  conferred  on  this  Court  of  passing  judgment  upon 
the  acts  of  the  State  sovereignties,  and  upon  the  legislative  and  exe- 
cutive branches  of  the  Federal  Government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  them  re- 
spectively by  the  Constitution  of  the  United  States.  This  tribunal,there- 
fore,  should  be  the  last  to  overstep  the  boundaries  which  limit  its  own 
jurisdiction.  And  while  it  should  always  be  ready  to  meet  any  ques- 
tion confided  to  it  by  the  Constitution,  it  is  equally  its  duty  not  to  pass 
beyond  its  appropriate  sphere  of  action,  and  to  take  care  not  to 
involve  itself  in  discussions  which  properly  belong  to  other  forums." 

The  scrupulous  caution  of  the  Chief-Justice  in  confining  the  exercise 
of  the  judicial  power  within  its  well-defined  and  circumscribed  limits, 
and  his  repugnance  to  assume  an  authority  not  warranted  by  the 
strict  terms  of  the  Constitution,  are  manifest  not  in  the  foregoing  cases 
only,  but  in  nearly  all  the  constitutional  cases  which  came  before  him. 
One  or  two  exceptions,  however,  have  occurred,  and  among  them  the 
most  prominent,  perhaps,  and  boldest,  is  that  extending  the  admiralty 
jurisdiction  of  the  Court  beyond  the  flow  of  the  tide  on  navigable 
waters,  and  over  the  great  lakes. 

The  Constitution  of  the  United  States  provides  that  the  judicial 
power  shall  extend  "  to  all  cases  of  admiralty  and  maratime  jurisdic- 
tion ;"  and  the  question  whether  Congress  could  ever  grant  the  Fede- 
ral Courts,  or  the  courts  could  ever  constitutionally  exercise,  power  to 
hear  and  adjudicate  cases  which  were  not  of  "  admiralty  and  mara- 
time jurisdiction"  at  the  tune  of  the  adoption  of  the  Constitution, 

the  reponse  sans  replique  of  juridical  argument,  and  leaves  the  subject  very 
nearly  exhausted. 


ROGER  B.  TANEY.  525 

might  well  be  considered  a  question  of  no  slight  importance.  In  the 
earlier  discussions  in  the  old  Supreme  Court,  it  had  been  settled  con- 
trary, as  it  was  very  ably  argued,  to  the  English  admiralty  cases,  that 
the  jurisdiction  extended  within  the  body  of  a  county  on  tide  waters  ;* 
and  the  doctrine  seemed  too  well  settled  to  be  shaken,  although  in  the 
recent  case  of  Waring  vs.  Clark,  to  which  I  have  referred  on  a  pre- 
ceding page,  Judge  Woodbury,  with  whom  Judge  Daniel  concurred, 
endeavored,  unsuccessfully,  to  bring  the  Court  back  to  what  he  re- 
garded as  the  more  strict  and  legitimate  constitutional  construction.! 
It  was,  however,  considered  as  equally  well  settled  that  if  the  juris- 
diction did  extend  infra  corpus  comitatus,  it  was  also,  as  in  England, 
limited  by  the  ebb  and  flow  of  the  tide.  The  doctrine  was  so  laid 
down  by  Judge  Story  as  the  unanimous  opinion  of  the  Court  in  the 
case  of  the  Thomas  Jefferson,  in  1825,!  aQd  was  recognized  and  fol- 
lowed by  subsequent  cases. 

I  have  alluded  in  the  preceding  sketch  of  Chief-Justice  Marshall  to 
the  opinion  entertained  by  that  distinguished  Judge,  that  these  cases 
had  been  decided  upon  wrong  principles,  and  that  the  admiralty 
jurisdiction  of  the  Federal  Courts  ought  to*be  held  to  extend  over 
the  lakes,  as  well  as  over  our  great  rivers  as  far  as  navigable  beyond 
the  flow  of  the  tide.§  No  convenient  opportunity,  however,  ever 
occurred  to  him  to  express  these  views  in  a  judicial  decision.  The 
task  passed  into  the  hands  of  his  successor  upon  the  bench,  by  whom 
it  was  performed  in  precisely  the  same  manner  that  it  would  have 
been  done  by  Marshall  himself. 

The  case  which  elicited  this  important  opinion  of  Chief-Justice 
Taney  is  that  of  The  Genesee  Chief,  at  the  December  term  of  1851.|| 
The  collision  and  loss  had  happened  on  Lake  Ontario,  and  the  vessel 
had  been  libelled  in  the  District  Court  for  the  Northern  District  of 

*  See  remarks  on  this  subject,  ante  page  250,  and  note. 

t  Judge  Daniel  has  always  consistently  and  firmly  adhered  to  these  views. 
See  his  dissenting  opinions  in  New  Jersey  Steam  Navigation  Co.  vs.  The  Mer- 
chants Bank,  6  How.  344,  Newton  vs.  Stebbins,  10  How.  586.  Genesee  Chiff  vs. 
Fitzhugh,  12  How.  443. 

t  10  Wheaton's  Reports,  428.  And  see  Steamer  Orleans  vs.  Phoebus,  11  Peters, 
175.  United  States  vs.  Combs,  12  Peters.  72. 

§  Ante,  page  444. 

||  Propeller  Genesee  Chief  et.  al.  vs.  Fitzhugh  et.  al.,  12  Howard,  443. 


526  LIVES  OF  THE  CHIEF-JUSTICES. 

New  York.  In  1845  Congress  had  passed  an  act  extending  the  admi- 
ralty jurisdiction  over  the  lakes  and  the  navigable  waters  connecting, 
and  the  important  question  now  presented  was,  whether  this  act  was 
authorized  by  the  Constitution.  The  question  had  never  yet  been 
directly  presented  or  decided.  For  though  the  attention  of  the  Court 
had  been  directed  to  it  in  Waring  vs.  Clark,*  and  also  at  the  next 
subsequent  term  in  the  New  Jersey  Steam  Navigation  Company  vs. 
The  Merchants'  Bank,f  yet  nothing  upon  this  point  was  definitely 
settled.  The  Chief-Justice  now  met  the  question  boldly,  and  linally 
disposed  of  it.  The  judgment  of  the  Court  was  pronounced  by  him. 
He  sustained  the  act  of  Congress,  and  the  jurisdiction,  upon  the  broad- 
est and  most  extended  principles.  The  prior  decisions  of  the  Court 
limiting  the  jurisdiction  to  tide  waters,  commencing  with  the  case  of 
the  Thomas  Jefferson,  are  all  swept  away.  As  to  that  decision,  he 
remarks,  that,  as  it  was  "founded  in  error,  and  the  error,  if  not  cor- 
rected, must  produce  serious  public  as  well  as  private  inconvenience 
and  loss,  it  becomes,  our  duty  not  to  perpetuate  it."  The  validity  of 
the  act  of  Congress  is  placed  upon  the  original  and  inherent  jurisdic- 
tion of  the  Court.  "  It  is  evident,"  he  says,  "  that  a  definition  that 
would  at  this  day  limit  public  rivers  in  this  country  to  tide  water 
rivers  is  utterly  inadmissible.  We  have  thousands  of  miles  of  public 
navigable  waters,  including  lakes  and  rivers,  in  which  there  is  no  tide. 
And  certainly  there  can  be  no  reason  for  admiralty  power  over  a 
public  tide  water,  which  does  not  apply  with  equal  force  to  any  other 
public  water  used  for  commercial  purposes  and  foreign  trade.  The 
lakes  and  the  waters  connecting  them  are  undoubtedly  public  waters  ; 
and  we  think  are  within  the  grant  of  admiralty  and  maratime  juris- 
diction in  the  Constitution  of  the  United  States." 

The  only  dissenting  voice  to  thjs  judgment  of  the  Court,  as  appears 
from  the  report,  was  that  of  Mr.  Justice  Daniel.  Judge  Woodbury 
was  no  longer  there  to  enter  a  protest  against  the  adoption  of  a  prin- 
ciple, analogous  to  that  which,  on  a  previous  occasion,  he  had  so  pow- 
erfully combated.  He  died  during  the  preceding  vacation,  and  the 
customary  honors  had  been  offered  to  his  memory  at  the  opening  of 
this  session  of  the  Court.J 

*  5  Howard  Reports,  441. 

t  G  Howard  Reports,  344. 

t  The  public  career  and  eminent  services  of  Judge  Woodl  urv  am  too  \voli 


ROGER  B.  TANEY.  537 

At  the  ensuing  session,  the  same  melancholy  tribute  was  rendered 
to  the  memory  of  Judge  McKinley,  of  Alabama,  who  had  died  since 
the  last  adjournment.* 

known  to  require  even  a  passing  notice  in  this  place,  and  indeed  it  would  be  doing 
him  injustice- to  attempt  it  within  the  brief  limits  of  a  note.  Governor  of  the 
State  of  New  Hampshire,  Secretary  of  the  Navy,  and  afterwards  of  the  Treasury, 
and  for  many  years  one  of  the  ablest  and  most  eminent  members  of  the  United 
States  Senate,  his  last  and  greatest  distinction— in  the  eloquent  words  of  Attor- 
ney-General Crittenden— was  that  of  "Judge  of  the  Supreme  Court  of  the  United 
States,  whose  jurisdiction  is  more  extended  than  any  other  upon  the  continent,  and 
whose  mandate  is  obeyed  from  Boston  to  San  Francisco."  He  was  but  six  years 
on  the  bench,  but  he  was  there  long  enough  to  leave  behind  him,  in  the  language 
of  the  same  eloquent  spoaker,  "  a  fame  which  is  immortal." 

In  response  to  the  brief  address  of  the  Attorney-General  on  the  death  of  Judge 
Woodbury.  Chief-Justice  Taney  remarked :  "His  life  had  been  passed  mainly  in 
the  public  service,  before  he  became  a  member  of  this  Court.  And  in  the  various 
and  important  offices,  judicial  and  political,  to  which  he  had  been  appointed,  he 
was  always  found  equal  to  the  duties  imposed  upon  him,  and  never  failed  to  dis- 
tinguish himself  by  the  extent  and  accuracy  of  his  information  upon  every  sub- 
ject connected  with  his  official  duties,  or  upon  which  he  was  at  any  time  called 
upon  to  act.  The  same  learning,  and  the  same  untiring  industry,  marked  his  brief 
course  on  this  bench.  We  all  feel  that  we  have  lost  in  him  an  able,  upright,  and 
learned  associate,  and  most  truly  and  sincerely  deplore  his  death." 

The  judicial  and  constitutional  opinions  of  Judge  Woodbury  are  to  be  found  in 
Howard's  Reports  from  the  4th  to  the  llth  volume  inclusive.  His  speeches  and 
other  works  have  been  recently  published,  and  furnish  a  valuable  addition  to  the 
political  history  of  the  country. 

*  JUDGE  McKixLEY  had  been  a  member  of  the  court  for  fifteen  years,  having 
been  appointed  by  President  Van  Buren  in  the  spring  of  1837,  under  the  act  in- 
creasing the  number  of  judges  to  nine.  He  had  been  a  distinguished  member  of 
both  houses  of  Congress,  and  at  the  time  of  his  appointment  as  judge,  had  just 
been  elected  a  senator  from  Alabama  for  the  full  term  of  six  years.  His  death 
was  accelerated,  it  is  thought,  by  the  efforts  he  made  to  attend  the  last  session  of 
the  Court,  when  his  health  had  become  too  infirm  to  encounter  the  fatigue  of  a 
journey  to  Washington.  The  character  of  Judge  McKinley,  both  as  a  juri.-t  :\:\<l 
a  man,  is  very  appropriately  summed  up  by  Attorney-General  Crittemlen  in  his 
brief  address  to  the  Court,  on  moving  the  customary  resolutions  :  ••  I  had  the  good 
fortune,"  he  remarks,  "to  bo  acquainted  with  Judgi?  McKinley  from  my  . 
manhood.  In  the  relations  of  private  lift;  ho  was  frank,  h'l-pltai'l 
In  his  manners  ho  was  simple  and  unaflVcted,  and  his  rharaehT  was  uniformly 
marked  with  manliness,  integrity,  and  honor.  Elevation  to  the  bench  of  the 


528  LIVES  OF   THE  CHIEF-JUSTICES. 

The  present  sketch  would  be  extended  to  undue  limits,  were  I  to 
enter  upon  a  particular  review  of  the  various  constitutional  and  other 
important  questions  which  have  occupied  the  attention  of  the  Supreme 
Court  for  the  last  three  or  four  years,  and  in  the  discussion  and  final 
determination  of  all  of  which  the  vigorous  and  still  active  mind  of 
Judge  Taney  has  participated.  I  may  mention,  however,  in  passing, 
that  at  the  session,  commencing  December,  1850,  he  pronounced  the 
judgment  of  the  Court,  in  the  case  of  The  Philadelphia  and  Wilmington 
Railroad  Co.  vs.  Maryland,*  re-affirming  the  doctrine  which  had,  on 
more  than  one  occasion,  been  held,  that  the  taxing  power  of  a  State 
is  never  presumed  to  be  relinquished,  or,  unless  the  intention  to  relin- 
quish, is  declared  in  clear  and  unambiguous  terms  ;  and  therefore  that 
a  railroad  corporation,  chartered  by  the  State,  is  not  presumed  to  be 
exempted  from  State  taxation.f  Also,  that  at  the  subsequent  term, 
commencing  December,  1851,  he  delivered  an  able  dissenting  opinion 
in  the  celebrated  Wheeling  Bridge  case,  a  controversy  still  fresh  in 
the  public  mind,  and  too  well  known  to  require  more  than  a  passing 
notice.!  Also,  that  at  the  following  session,  commencing  December, 

Supreme  Court  made  no  change  in  him.  His  houors  were  borne  meekly,  without 
ostentation  or  presumption. 

"He  was  a  candid,  impartial,  and  righteous  judge.  Shrinking  from  no  respon- 
sibility, he  was  fearless  in  the  performance  of  his  duty,  seeking  only  to  do  right, 
and  fearing  nothing  but  to  do  wrong." 

Chief-Justice  Taney  adds  that  "  He  was  a  sound  lawyer,  faithful  and  assiduous 
in  the  discharge  of  his  duties,  while  his  health  was  sufficient  to  undergo  the  labor." 
And  that,  "  He  was  frank  and  firm  in  his  social  intercourse,  as  well  as  in  the  dis- 
charge of  his  official  duties ;  and  no  man  could  be  more  free  from  guile,  or  mpre 
honestly  endeavor  to  fulfil  the  obligations  which  his  office  imposed  upon  him." 

*  10  Howard's  Reports,  377. 

f  The  principle  was  similar  to  that  laid  down  by  Chief-Justice  Marshall,  in 
Providence  Bank  vs.  Billings,  heretofore  noticed.  It  was  also  based  upon  similar 
grounds  with  those  assumed  by  Chief-Justice  Taney  iu  his  earliest  constitutional 
judgment,  in  the  Charles  River  Bridge  case.  It  is  proper  here  to  remark  that  the 
principle  of  the  latter  case  was  fully  sanctioned  by  the  Court  at  this  term,  iu  the 
case  of  East  Hartford  vs.  Hartford  Bridge  Co.,  10  How.  511,  the  opinion  being 
given  by  Judge  "Woodbury,  in  which  he  cites  with  approbation  a  portion  of  the 
reasoning  of  the  Chief-Justice  in  the  Charles  River  Bridge  case. 

t  13  Howard's  Reports,  519. 

In  this  case,  it  will  be  recollected,  the  Court  declared  the  bridge  a  nuisance,  and 
that  the  act  of  Virginia  authorising  the  structure,  so  as  to  obstruct  navigation, 


ROGER  B.  TANEY.  529 

1852,  he  dissented  from  the  judgment  of  the  Court,  in  a  brief  opinion, 
in  the  important  case  of  The  Vincennes  University  vs.  The  State  of 
Indiana,  holding,  in  opposition  to  the  majority  of  his  brethren,  that  a 
reservation  of  public  lands  by  Congress,  for  the  use  of  a  seminary  of 
learning,  was  not  like  a  grantor  donation  to  a  private  individual,  or  for 
private  purposes,  but  that  the  State,  on  the  organization  of  its  govern- 
ment, succeeded  to  the  land  as  trustee,  and  could  constitutionally  dis- 
pose of  it,  and  appropriate  the  fund  to  the  uses  for  which  it  was 
dedicated.*  At  the  same  time  he  delivered  the  judgment  in  Kennett 
ct  al  vs.  Chambers,  f  a  case  arising  in  the  Texas  district,  in  which  is 
re-affirmed  the  safe,  and  wisely  conservative,  principle,  that  it  belongs 
exclusively  to  the  political  department  of  the  government  to  recognize 
a  new  government  in  a  foreign  country, 'claiming  to  have  displaced  an 
old  and  established  one,  and  until  such  recognition,  the  Judiciary  are 
bound  to  consider  the  old  order  of  things  as  having  continued.  The 
legal  consequence  of  this  rule,  in  its  application  to  the  particular  case, 
was  held  to  be,  that  a  contract  to  advance  money  to  a  General  in  the 
Texan  army,  after  the  declaration  by  Texas  of  its  independence,  but 
before  recognition  by  the  United  States,  was  void,  as  being  in  contra- 
vention of  the  public  policy  and  laws  of  the  Union. 

In  bringing  to  a  close  this  review  of  the  judicial  labors  of  Chief- 
Justice  Taney,  I  might  with  propriety  apologize  for  its  incompleteness 
and  imperfection.  Looking  back  upon  the  extensive  field  which  has 
been  passed  over,  I  am  satisfied  that  but  little  more  has  been  done  in 
his  case,  as  in  the  case  of  his  predecessor,  than  to  gather,  here  and  there, 

would  afford  no  protection  to  the  company,  inasmuch  as  the  Ohio,  being  a  naviga- 
ble stream,  was  subject  to  the  commercial  power  of  Congress.  On  the  latter  point 
the  Chief-Justice  thought  the  case  fell  precisely  within  the  principle  of  the  Black- 
bird Creek  Marsh  Company,  decided  in  Chief-Justice  Marshall's  time.  Ante ,  page 
425.  And  he  could  not  perceive,  he  says,  "  how  the  mere  grant  of  power  to  the  legis- 
lative department  to  regulate  commerce,  can  give  to  the  judicial  branch  the-  power 
to  declare  what  shall  and  what  shall  not  be  regarded  as  an  unlawful  ol»tr;. 
.Mr.  Justice  Daniel,  in  a  strong  and  well  reasoned  opinion,  also  dissentfd  fn>m  the 
majority  of  the  Court.  It  is  proper  to  add  that  the  judgment  of  tin-  B 
Court  was  practically  nullified  by  a  subsequent  act  of  Congress,  declaring  tho 
Wheeling  Bridge  a  post  road  of  the  United  States. 

*  14  Howard's  Reports,  269. 

t  14  Howard's  Reports,  39. 
34 


530  LIVES  OF  THE  CHIEF-JUSTICES. 

a  sheaf,  leaving  a  rich  and  abundant  harvest  behind.  To  gather  that 
little  has  been  no  easy  task,  for  the  profusion  of  the  material  renders 
it  the  more  difficult  to  make  a  proper  and  discriminating  selection.  I 
have  aimed  to  confine  the  review  mainly  to  the  most  important  consti- 
tutional questions,  which,  from  time  to  time,  have  come  before  him.  In 
doing  so,  it  has  been  unavoidably  necessary  to  pass  over  without 
notice  a  mass  of  interesting  cases,  comprehending  almost  every  branch 
of  civil  jurisprudence,  connected,  not  only  with  those  subjects  which 
belong  exclusively  to  the  Federal  tribunals,  but  embracing,  also,  the 
entire  range  of  legal  and  equitable  remedies.  A  thorough  and  accu- 
rate study  of  these  subjects  is  the  province  of  the  professional  man 
alone  ;  and  a  critical  review  of  them  would  not,  therefore,  be  expected 
in  this  place.  Perhaps  enough  has  been  done,  however,  to  indicate 
something  of  the  extent,  the  variety,  and  the  usefulness  of  the  labors 
performed  by  the  subject  of  this  sketch  during  a  period  of  eighteen 
years'  uninterrupted  service  on  the  bench,  and  to  convey  to  the  reader 
some  adequate  notion  of  those  rare  endowments  of  character,  of  intel- 
lect, and  of  temperament,  which  must  combine  in  the  man,  who,  as  has 
been  the  good  fortune  of  Judge  Taney,  is  able  to  fill  with  honor  to 
himself,  and  profit  to  his  country,  the  office  of  Chief-Justice  of  the 
United  States. 

Judge  Taney  married,  in  early  life,  a  daughter  of  John  Ross  Key, 
and  has  seen  a  numerous  family  growing  up  around  him.  He  has  now 
reached  a  ripe  old  age,  but  is  yet,  as  his  later  judgments  abundantly 
manifest,  in  the  full  possession  of  his  mental  faculties. 

He  still  presides  with  ease  and  dignity  over  the  deliberations  of  the 
Supreme  Court.  The  past  session  has  been  one  of  more  than  ordinary 
labor.  An  uninterrupted,  term  of  three  months  was  followed  by  a  brief 
recess  during  the  month  of  March,  the  session  again  commencing  on 
the  first  of  April.  Several  causes  of  great  magnitude  and  intricacy 
were  brought  before  the  Court.  Among  these,  the  Spanish  laud  title 
case,  Choteau  vs.  Malony,  involving  property  to  the  amount  of  many 
millions  of  dollars,  the  result  of  which  was  looked  for  with  intense 
interest,  and  which  has  been  decided  against  the  validity  of  the  Span- 
ish grant ;  also  the  McDonough  will  case,  on  which  depended  pro- 
perty to  the  amount  of  from  five  to  eight  .millions  of  dollars,  devised 
mainly  for  charitable  purposes  to  the  cities  of  Baltimore  and  New 


ROGER  B.  TANEY.  53^ 

Orleans.*  The  importance  of  some  of  these  cases  was  such  as  to 
induce  the  Court  to  relax  the  two  hour  rule,  and  this  of  course  pro- 
tracted the  labors  of  the  session.  The  argument  of  the  McDonough 
Will  case  alone  occupied  the  greater  portion  of  a  week — an  argument, 
it  may  be  added,  distinguished  by  an  uncommon  display  of  forensic 
ability,  eloquence,  and  learning. 

And  during  all  these  discussions,  from  the  commencement  to  the 
close,  the  venerable  Chief-Justice  was  to  be  seen  in  his  scat,  day  after 
day,  vigilant,  patient,  attentive,  and  carefully  listening  to  every  word 
uttered,  and  apparently  weighing  each  sentence,  and  every  proposition, 
as  it  fell  from  the  lips  of  the  advocate.  Every  day,  at  the  usual  hour 
of  opening  the  Court,  whoever  else  might  be  absent,  he  was  sure  to  be 
seen,  heading  the  procession  of  Judges,  and  with  slow  and  measured, 
but  firm  step,  approaching  his  customary  seat.  Whatever  impatience 
or  indifference  others  might  manifest  at  the  dullness  or  prolixity  of  an 
argument,  no  sign  or  look  upon  his  countenance  indicated  anything 
else  than  the  most  careful  attention.  You  might  watch  him  by  the 
hour,  and  it  was  the  same.  You  might  be  sure  that  he  suffered  no 
word  to  escape  him  ;  that  he  heard  every  thing  worth  hearing  ;  that  his 
mind  was  fixed  upon  the  subject ;  and  that  he  remembered  whatever 
might  be  material  to  the  merits  of  the  argument,  I  have  elsewhere 
remarked  that  the  patience  of  Chief-Justice  Marshall  was  proverbial, 
and  that  he  was  one  of  the  best  listeners  who  ever  sat  upon  the  benclL 
In  this  respect,  Chief-Justice  Taney  emulates  the  example  of  his  illus- 
trious predecessor.  No  one  who,  with  respectful  address,  invokes  the 
Court  where  he  presides,  fails  to  obtain  a  full  and  attentive  hearing. 
I  believe  there  are  no  qualities  of  the  Judge  which  more  strongly  win 
upon  the  favor  of  the  profession,  than  that  amenity  of  temper  and 
equanimity  of  mind  which  lead  him,  on  all  occasions,  to  a  calm,  rarm-st, 
respectful,  and  (even  though  apparent  only)  unabstracted  attention 
to  the  arguments  addressed  to  him.  The  best  listener,  other  thinjra 
being  equal,  has  generally  the  strongest  hold  upon  the  affections  of 
the  bar  ;  for  an  attentive  and  respectful  hearing  is  a  spontaneous  com- 
pliment to  eloquence,  it  is  a  delicate  flattery  to  modest  mediocrity,  and 
a  kind  of  benevolence  even  to  dullness  itself.  Many  an  advocate  at 

*  Mr.  Justice  Campbell  delivered  the  opinion  of  the  Court  in  this  case,  sustaining 
the  will. 


532  LIVES  OF  THE  CHIEF-JUSTICES. 

the  bar,  no  matter  whether  with  a  bad  or  a  good  case,  -has  felt  the 
risings  of  that  hot  and  passionate  indignation  which  prompted  the 
exclamation  of  the  Athenian  :  "  Strike,  but  HEAR  ME  !"  But  it  has 
not  been  at  the  bar  of  the  Court  where  Marshall  presided,  and  where 
Tauey  presides.  To  the  elevated  and  pure  minds  of  Judges  like  these, 
an  attentive  hearing  of  the  case  is  not  merely  the  exercise  of  an  empty 
compliment,  but  it  is  a  solemn  obligation.  To  HEAR  is,  with  them,  a 
part,  and  no  inconsiderable  part,  of  judicial  duty  ;  and  this  duty  is 
discharged  with  a  full  appreciation  of  the  deeply  significant  truth  em- 
bodied in  that  delicate  and  classic  conception  which  associates  the 
bandaged  eyes  of  Justice,  with  the  ever  open  and  attentive  ear. 

The  present  is  not  perhaps  the  proper  time  or  occasion  to  speak  of 
the  private  and  social  virtues  of  the  eminent  man  whose  public  career 
I  have  thus  endeavored  to  trace.  That  task  will  be  more  appropri- 
ately performed  hereafter.  A  sense  of  delicacy  forbids  any  attempt 
to  speak  the  eulogy  of  the  living  ;  in  a  few  more  years  it  may  be  done 
with  freedom,  with  discriminating  impartiality,  and  without  reserve. 
It  is  the  province  of  the  cotemporary  observer  to  note  facts,  and  to 
record  the  actions  of  those  eminent  men  who  still  remain  upon  the 
stage,  and  of  posterity  to  pass  upon  their  merits  after  they  shall  have 
gone  from  among  us.  It  is  sufficient  here  to  say,  what  all  who  know 
Chief-Justice  Taney,  will  regard  as  but  a  simple  act  of  justice,  that  in 
the  domestic  relations,  and  in  the  private  and  social  intercourse  of  life, 
he  is  as  much  beloved  as  he  is  respected  in  his  public  and  judicial  cha- 
racter. A  reputation  beyond  reproach  or  the  breath  of  calumny,  a 
purity  of  life  that  no  man  can  assail,  a  frank,  independent,  manly 
uprightness  of  conduct  which  knows  no  guile,  are  united  with  that 
benignity  of  temper,  those  generous  sympathies  of  the  heart,  and 
those  solid  household  virtues  which  brighten  the  social  circle,  and 
gladden  the  domestic  hearth.  In  his  intercourse  with  others  there  is 
a  warmth  of  kindly  feeling,  united  with  an  unaffected  simplicity  of 
manner,  that  irresistibly  wins  upon  all  who  approach  him  ;  but  it  is 
blended  with  a  natural  dignity  of  carriage  that  commands  respect,  and 
represses  undue  familiarity. 

We  may  point  to  Judge  Taney  as  one  of  our  best  specimens  of  the 
American  lawyer  and  jurist.  His  whole  life,  from  earliest  manhood, 
has  been  professional.  He  is  one  of  the  few  really  eminent  men  of  the 


ROGER  B.  TANEY.  533 

country  who  have  scarcely  any  political  history.  With  the  single  ex- 
ception of  the  brief  period,  during  which  he  filled  the  office  of  Secre- 
tary of  the  Treasury,  in  the  Cabinet  of  General  Jackson,  he  was  never 
at  any  time  entirely  withdrawn  from  the  studies  connected  with  his 
profession.  The  few  years  of  his  service  in  the  Maryland  Legislature, 
temporarily  diverted  his  attention,  but  did  not  entirely  interrupt  his  legal 
pursuits.  His  appointment  as  Attorney-General  of  the  United  States 
introduced  him  merely  to  a  wider  theatre  of  professional  action.  He 
came  to  the  bench,  a  deeply  read,  and  profoundly  learned  lawyer — a 
master  of  the  principles,  and  thoroughly  skilled  in  the  practice,  of  the 
law.  He  brought  with  him  large  acquirements,  and  the  fruits  of  a 
ripe  experience,  and  the  result  has  been,  that  he  has  sustained  himself 
with  ability  and  honor,  as  the  head  of  the  Federal  Judiciary,  and  has 
proved  himself,  in  the  words  of  Mr.  Clay,  "  a  worthy  successor  of 
Chief-Justice  Marshall." 

Long  may  he  continue  to  fill  that  place,  and  to  enjoy  that  merited 
distinction.  To  one  like  him,  we  may  address,  in  no  spirit  of  unmean- 
ing adulation,  the  words  of  the  Roman  bard — 

Scrus  in  ccclum  redeas. 


2490.7$ 


JA1 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 
THE  UNIVERSITY  LIBRARY 
OF 
Los  Angeles 


J; 


4W(KNOVo2  1 
DEC05JP94 


APR  08  1997 


I 

i985 


315 


3  1158  00038  0997 


